


m^^ 



TTST TEBN ATION AL LAW. 



THE CASE 



OF THE 



PRIVATE ARMED BRIG OF WAR 

GEN. ARMSTRONG, 

CONTAINING 

TETTERS AKD DOCUMENTS REFERRIKG TO THE HISTORY 

OF THE CI AIM; BRIEF OF FACTS, AND AUTHORITIES 

CITED • ARGUMENTS OF CHARLES O'CONOR, ESQ., 

HOn' P PHILLIPS, AND SAM C. REID, Je.; AND 

BRIEF OF THE U. S. SOLICITOR 

BEFORE THE UNITED STATES COURT OF CLAIMS 

AT WASHINGTON, D. C. 

WITH 

THE DECISION OF THE COURT, 

AND 

AN APPENDIX 

CONSISTING OF 

RKPRETARY MONROE'S LETTER OF INSTRUCTIONS TO ^^5^^^^^^^^ 
^]ECEETAR™^_ the TREATY WITH PORTUGAL, AN^^THE >VC^ 
^/.jv'v- . \S. AWARD OF LOUIS NAPOLEON. // _ K^/V^ >• 



>■/ J^\> , V AWARD Of L-UUis JMAruL,i^wix. , ^"^^^ ^ >• 

/S^'IK^ \^ BEPORTED AND EDITED \\ w^ \^X S'l V 

■'#\^ ,.^> JY SAM C. EEID, ^'^^^k^-^'^- 

i COUNSELLOR AT LAW. "A^ik^Jv ^ ^^ \ \ 




NEW YORK: 
KS, GOULD & CO., 144 NASSAU STREET: 

ALBANY : 
GOULD, BANKS & CO., 475 BROADWAY. 

1857. 




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PREFACE. 



We present to the public, a full Keport of tlie Case of tlie 
private armed brig-of-war General Armstrong. The cause 
itself is of the most marked and unusual legal and historical 
interest to the profession and the country at large. 

The history of the prosecution of this Claim by the United 
States Government against Portugal, for a period of over 
thirty-eight years — involving a correspondence with some of 
the most distinguished men of the United States, Portugal, 
England, and France— as unfolded in the able arguments of 
the distinguished counsel, will be found as interesting as it 
is remarkable. 

This celebrated cause treats of, and the opinion of the 
court decides upon, some of the most interesting and import- 
ant points of International Law relating to the rights and 
duties of Neutral Powers, and their obligations towards belli- 
gerents ; of the obligations and duties of the Government 
towards its citizens, and its liabilities ; of arbitration and 
submission ; of the duties of the arbitrator, of the award, and 
its validity, etc., which will render this work invaluable as a 
reference and authority for the diplomate, the statesman, 
the jurist, and the lawyer. 

The Publisheks. 




OFFICIAL REPORT 



OF 



THE BATTLE OF FATAL, 

MADE BY CAPTAIN REID TO MESSES. JENKINS AND HAVENS, THE AGENTS. 

Fatal, ith October, 1814. 

With infinite regret I am constrained to say it has eventuaUy 
fallen to my lot to state to you the loss and total destruction of the 
private armed brig General Armstrong, late under my command. 

We sailed from Sandy Hook on the evening of the 9th ult., and 
about midnight fell in close aboard of a razee and ship-of-the-line. 
They pursued till next day noon, when they thought proper to give 
over chase. On the 11th, after a nine hours' chase, boarded the 
private armed schooner Perry, John Colman, six days from Phila- 
delphia ; had thrown over all his guns. On the following day, fell 
in with an enemy's gun brig ; exchanged a few shots with, and left 
him. On the 24th, boarded a Spanish brig and schooner, and a 
Portuguese ship, all from the Havana. On the 26th following, 
came to in Payal Roads, for the purpose of filling water ; called on 
the American consul, who very politely ordered our water imme- 
diately sent off, it being our intention to proceed to sea early the 
next day. At 5, p.m., I went on board, the consul and some other 
gentlemen in company. I asked some questions concerning enemy's 
cruisers, and was told there had been none at these islands for several 
weeks ; when about dusk, while we were conversing, the British brig 
Carnation suddenly hove in sight, close under the N.E. head of the 



5 



VI OFFICIAL REPORT OF 

harbor, within gunshot when first discovered. The idea of getting 
under way was instantly suggested ; but finding the enemy's brig 
bad the advantage of a breeze, and but little wind with us, it was 
thought doubtful if we should be able to get to sea without hazard- 
ing an action. I questioned the consul to know if, in his opinion, 
the enemy would regard the neutrality of the port ? He gave me 
to understand I might make myself perfectly easy, assuring me, at 
the same time, they would never molest us while at anchor. But 
no sooner did the enemy's brig understand from the pilot-boat who 
we were, when she immediately hauled close in, and let go her anchor 
within pistolshot of us. At the same moment, the Plantagenet and 
frigate Rota bove in sight, to whom the Carnation instantly made 
signal, and a constant interchange took place for some time. The 
result was, the Carnation proceeded to throw out all her boats, 
despatched one on board the commodore, and appeared otherwise to 
be making unusual exertions. From these circumstances I began 
to suspect their real intentions. The moon was near its full, which 
enabled us to observe them very minutely ; and I now determined 
to haul in nearer the shore. Accordingly, after clearing for action, 
we got under way, and began to sweep in. The moment this was 
observed by the enemy's brig, she instantly cut her cable, made sail, 
and despatched four boats in pursuit of us. Being now about 8 p.m. 
as soon as we saw the boats approaching we let go our anchor, got 
springs on our cable, and prepared to receive them. I hailed them 
repeatedly as they drew near, but they felt no inclination to reply. 
Sure of their game, they only pulled up with the greater speed. I 
observed the boats were well manned, and apparently as well armed ; 
and, as soon as they had cleverly got alongside, we opened our fire, 
which was as soon returned ; but meeting with rather a warmer 
reception than they had probably been aware of, they soon cried out 
for quarters, and hauled off. In this skirmish, I had one man killed, 
and my first lieutenant wounded. The enemy's loss must have been 
upwards of twenty killed and wounded. 
They had now repaired to their ships to prepare for a more for- 



THE BATTLE OF FATAL. ^U 

midable attack. We, ia the interim, having taken the hint, prepared 
to haul close in to the beach, where we moored head and stern 
within half pistolshot of the castle. This done, we again prepared, 
in the best possible manner, for their second reception. About 
9 P.M. we observed the enemy's brig towing in a large fleet of boats. 
They soon after left the brig, and took their stations in three 
divisions, under the covert of a small reef of rocks, within about 
musketshot of us. Here they continued manceuvering for some 
time, the brig still keeping under way to act with the boats, should 
we at any time attempt our escape. 

The shore was lined with the inhabitants, waiting the expected 
attack ; and from the brightness of the moon, they had a most 
favorable view of the scene. The governor, with most of the first 
people of the place, stood by and saw the whole affair. 

At length, about midnight, we observed the boats in motion (our 
crew having laid at their quarters during the whole of this interval.) 
They came on in one direct line, keeping in close order, and we 
plainly counted twelve boats. As soon as they came within proper 
distance we opened our fire, which was warmly returned from the 
enemy's carronades and small arms. The discharge from our Long 
Tom rather staggered them ; but soon recovering, they gave three 
cheers, and came on most spiritedly. In a moment they succeeded 
in gaining our bow and starboard quarter, and the word was Board. 
Our great guns now becoming useless, we attacked them sword in 
hand, together with our pikes, pistols, and musketry, from which our 
lads pom-cd on them, a most destructive fire. The enemy made fre- 
quent and repeated attempts to gain our decks, but were repulsed at 
all times, and at all points, with the greatest slaughter. About the 
middle of the action, I received intelligence of the death of my 
second lieutenant ; and soon after of the third lieutenant being 
badly wounded. From this and other causes, I found our fire had 
much slackened on the forecastle ; and, fearful of the event, I 
instantly rallied the whole of our after division, who had been 
bravely defending and now had succeeded in beating the boats off 



Vlll OFFICIAL REPORT OF 

the quarters. They gave a shout, rushed forward, opened a fresh 
fire, and soon after decided the conflict, which terminated in the 
total defeat of the enemy, and the loss of many of their boats : two 
of which, belonging to the Rota, we took possession of, literally 
loaded with their own dead. Seventeen only escaped from them 
both, who had swam to the shore. In another boat under our 
quarter, commanded by one of the lieuteuants of the Plantagenet, 
all were killed saving four. This I have from the lieutenant him- 
self, who further told me that he jumped overboard to save his own 
life. 

The duration of this action was forty minutes. Our deck was 
now found in much confusion, our Long Tom dismounted, and 
several of our carriages broken ; many of our crew having left the 
vessel, and others disabled. Under these circumstances, however, 
we succeeded in getting Long Tom in his berth, and the decks 
cleared in some sort for a fresh action, should the enemy attack us 
again before daylight. About 3 a. m. I received a message from 
the American consul, requesting to see me on shore, where he 
informed me the governor had sent a note to Captain Lloyd, 
begging him to desist from further hostilities. To which Captain 
Lloyd sent for answer, that he was now determined to have the 
privateer at the risk of knocking down the whole town ; and if the 
governor suffered the Americans to injure the privateer in any 
manner, he should consider the place an enemy's port, and treat it 
accordingly. Finding this to be the case, I considered all hopes of 
saving our vessel to be at an end. I, therefore, went on board, and 
ordered all our wounded and dead to be taken on shore, and the 
crew to save their effects as fast as possible. Soon after this it 
became daylight, when the enemy's brig stood close in, and com- 
menced a heavy fire on us with all her force. After several broad- 
sides she hauled off, ^having received a shot in her hull, her rigging 
much cut, and her foretopmast wounded. She soon after came 
in again, and anchored close to the privateer. I then ordered the 
Armstrong to be scuttled, to prevent the enemy from getting her 



THE BATTI^E OF FATAL. IX 

off. She was soon after boarded by the enemy's boats, and set on 
fire, which soon completed her destruction. 

They have destroyed a number of houses in the town, and 
murdered some of the inhabitants. 

By what I have been able to learn from the British consul and 
officers of the fleej, it appears there were about 400 officers and 
men in the last attack by the boats, of which 120 were killed and 
about 130 wounded. Captain Lloyd, I am told by the British 
consul, is badly wounded in the leg ; a jury of surgeons had been 
held, who gave as their opinion that amputation would be necessary 
to insure his life. The fleet has remained here about a week, during 
which they have been principally employed in burying their dead, 
and taking care of their wounded. 

Three days after the action, they were joined by the ship Thais 
and brig Calypso (two sloops-of-war), who were immediately taken 
into requisition by Captain Lloyd, to take home the wounded men. 
The Calypso sailed for England, with part of the wounded, on the 
2d instant, among whom was the first lieutenant of the Plantagcnet. 
The Thais sails this evening, with the remainder. Captain Lloyd's 
fleet sailed to-day, supposed for the West Indies. 

The loss, on our part, I am happy to say, is comparatively trifling ; 
two killed and seven wounded. With regard to my officers, in general, 
I feel the greatest satisfaction in saying, they one and all fought 
with the most determined bravery, and to whom I feel highly 
indebted for their officer-like conduct during the short period we 
were together ; their exertions and bravery deserved a better 

fate. 

It gives me much pleasure to announce to you that our wounded 
are all in a fair way of recovery, through the unremitted care and 
attention of our worthy surgeon. 

Mr. Dabney, our consul, is a gentleman possessing every feeling 
of humanity, and to whom the utmost gratitude is due from us for 
his great care of the sick and wounded, and his polite attention to 
my officers and myself. 



X THE BATTLE OF FATAL. 

Mr. Williams was a most deserving and promising officer. His 
country, in him, has lost one of its brightest ornaments ; and his 
death must be sadly lamented by all who knew his worth. 

Accompanied with this you will find a copy of my protest, 
together with copies of letters, written by Mr. Dabney to the 
governor of Fayal, our minister at Rio Janeire, and our Secretary 
of State. These letters will develop more fully the circumstances 
of this unfortunate affair. 

We expect to sail to-morrow, in a Portuguese brig, for Amelia 
Island, which takes the whole of our crew ; till when, I remain, 
gentlemen, your very obedient, humble servant, 

Sam C. Reid. 
I here insert, for your inspection, a list of the killed and wounded : 

KILLED. 

Mr. Alexander 0. Williams, second lieutenant, by a musket-ball in 

the forehead ; died instantly. 
Burton Lloyd, seaman, by a musket-ball through the heart ; died 

instantly. 

WOUNDED, 

Frederick A. Worth, first lieutenant, in the right side. 
Robert Johnson, third lieutenant, in the left knee. 
Bazilla Hammond, quarter-master, in the left arm. 
John Finer, seaman, in the knee. 
William Castle, seaman, in the arm. 
Nicholas Scalsan, seaman, in the arm and leg. 
John Harrison, seaman, in the hands and face, by the explosion 
of a gun. 



LETTER OF JOHN B. DABNEY. XI 



LETTER FROM THE U. S. CONSUL AT FATAL TO THE SECRETARY OF STATE 

Payal, bifi October, 1814 

Sir,— I have the honor to state to yon that a most outrageoas 
violation of the neutrality of this port, in utter contempt of the 
laws of civilized nations, has recently been committed here by the 
t3ommanders of his Britannic majesty's ships Plantagenet, Rota, 
and Carnation, against the American private armed brig General, 
Armstrong, Sam. C. Ueid, commander ; but I have great satisfac- 
tion in being able to add that this occurrence terminated in one of 
the most brilliant actions on the part of Captain Reid, his brave 
officers and crew, that can be found on naval record. 

The American brig came to anchor in this port, in the afternoon 
of the 26th of September, and at sunset of the same day the above- 
named ships suddenly appeared in these roads ; it being nearly calm 
in the port, it was rather doubtful if the privateer could escape if 
she got under way, and, relying on the justice and good faith of the 
British captains, it was deemed most prudent to remain at anchor. 
A little after dusk, Captain Reid, seeing some suspicious movements 
on the part of the British, began to warp his vessel close under the 
guns of the castle, and, while doing so, he was, at about eight 
o'clock, P.M., approached by four boats from tbe ships, filled with 
armed men. After hailing them repeatedly, and warning them to 
keep off, he ordered his men to fire on them, and killed and wounded 
several men. The boats returned the fire, and killed one man, and 
wounded the first lieutenant of the privateer, aud returned to their 
ships, and, as it was now hght moonlight, it was plainly perceived 
from the brig, as well as from the shore, that a formidable attack 
was premeditating. Soon after midnight, twelve or more large 
boats, crowded with men from the ships, and armed with carronades, 
swivels, and blunderbusses, small arms, &c., attacked the brig ; a 
severe contest ensued, which lasted about forty minutes, and ended 



fdi THE BATTLE OF FATAL. 

iu the total defeat and partial destruction of the boats, with a most 
unparalleled carnage on the part of the British. It is estimated by 
good judges that nearly 400 men were in the boats when the attack 
commenced, and no doubt exists in the minds of the numerous spec 
tutors of the scene, that more than half of them were killed or 
wounded ; several boats were destroyed ; two of them remained 
alongside the brig, literally loaded with their own dead. From these 
two boats only seventeen reached the shore alive ; most Of them 
were severely wounded. The whole of the following day the British 
were occupied in burying their dead ; among them were two lieu- 
tenants and one midshipman of the Rota ; the first lieutenant of 
the Plantagenet, it is said, cannot survive his wounds, and many of 
the seamen who reached their ships were mortally wounded, and 
have been dying daily. The British, mortified at this signal and 
unexpected defeat, endeavor to conceal the extent of the loss ; they 
admit, however, that they lost in killed, and who have died since the 
engagement, upwards of 120 of the flower of their officers and men. 
The captain of the Rota told me he lost 10 men from his ship. Two 
days after this affair took place, the British sloops-of-war Thais and 
Calypso came into port, when Captain Lloyd immediately took them 
into requisition to carry home the wounded ofBcers and seamen — • 
they have sailed for England, one on the 2d and the other on the 
4th instant ; each carried 25 badly wounded. Those who were 
sli"-htly wounded, to the number, as I am informed, of about 30, 
remained on board of their respective ships, and sailed last evening 
for Jamaica. Strict orders were given that sloops-of-war should 
take no letters whatever to England, and those orders were rigidly 
adhered to. 

In face of the testimony of all Fayal, and a number of 
respectable strangers who happened to be in this place at the 
moment, the British commander endeavors to throw the odium of 
this transaction on the American captain, Reid, alleging that he sent 
the boats merely to reconnoitre the brig, and without any hostile 
intentions. The pilots of the port did inform them of the privateer 



LETTER OF JOHN B. DABNET, XIU 

the moment they entered the port. To reconnoitre an enemy's 
vessel in a friendly port, at night, with four boats, carrying by the 
best accounts 120 men, is certainly a strange proceeding ! The fact 
is, they expected, as the brig was warping in, that the Americans 
would not be prepared to receive them, and they had hopes of carry- 
ing her by a "coup de main." If anything could add to the 
baseness of this transaction on the part of the British commander, it 
is want of candor openly and boldly to avow the facts. In vain can 
he expect by such subterfuge to shield himself from the indignation 
of the world, and the merited resentment of his own government and 
nation for thus trampling on the sovereignty of their most ancient 
and faithful ally and for the wanton sacrifice of British lives. 

On the part of the Americans the loss was comparatively nothing ; 
two killed and seven slightly wounded ; of the slain, we have to 
lament the loss of the second Lieut., Mr. Alexander 0. Williams 
of New York, a brave and meritorious officer. 

Among the wounded are Messrs. Worth and Johnston, first and 
third lieutenants ; Capt. Reid was thus deprived, early in the 
action, of the services of all his lieutenants ; but his cool and 
intrepid conduct secured him the victory. 

On the morning of the 2'7th nit., one of the British ships placed 
herself near the shore, and commenced a heavy cannonade on the 
privateer. Finding further resistance unavailing, Capt. Reid ordered 
her to be abandoned, after being partially destroyed, to prevent her 
falling into the hands of the enemy, who soon after sent their boats 
and set her on fire. 

At 9 o'clock in the evening (soon after the first attack), I applied 
to the governor, requesting his excellency to protect the privateer, 
either by force, or by such remonstrance to the commander of the 
squadron as would cause him to desist from any further attempt. 
The governor indignant at what had passed, but feeling himself 
totally unable, with the slender means he possessed, to resist such a 
force, took the part of remonstrating, which he did in forcible but 



Xiv THE BATTLE OF FATAL. 

respectful terms. His letter to Captain Lloyd had no other effect 
than to produce a menacing reply, insulting in the highest degree. 
Nothing can exceed the indignation of the public authorities, as 
well as of all ranks and description of persons here, at this unpro- 
voked enormity. Such was the rage of the British to destroy this 
vessel, that no regard was paid to the safety of the town ; some of 
the inhabitants were wounded and a number of the houses were 
much damaged. The strongest representations on this subject are 
prepared by the governor for his court. 

Since this affair the commander, Lloyd, threatened to send on 
shore an armed force and arrest the privateer's crew, saying there 
were many Englishmen among them, and our poor fellows, afraid of 
his vengeance, have fled to the mountains several times and have 
been harassed extremely. At length Captain Lloyd, fearful of 
losing more men if he put his threats in execution, adopted this 
stratagem ; he addressed an official letter to the governor, stating 
that in the American crew were two men who deserted from his 
squadron in America, and as they were guilty of high treason, he 
required them to be found and given up. Accordingly a force was 
sent into the country, and the American seamen were arrested and 
brought to town, and as they could not designate the said pretended 
deserters, all the seamen here passed an examination of the British 
officers, but no such persons were found among them. I was 
requested by the governor and British consul to attend this humili- 
ating examination, as was also Captain Rcid ; but we declined to 
sanction by our presence any such proceedings. 

Captain Rcid has protested against the British commanders of 
the squadron for the unwarrantable destruction of his vessel in a 
neutral and friendly port, as also against the government of Portu- 
gal for their inability to protect him. 

No doubt this government will feel themselves bound to make 
ample indemnification to the owners, officers, and crew of this vessel, 
for the great loss they have severally sustained. 



BKIEF OF FACTS. XT 

I shall as early as possible transmit a statement of this trans- 
action to onr minister at Rio Janeiro for this government. 

I have the honor to be, with great respect, sir, your most obedient 
servant. 



John B. Dabney. 



To the Secretary of State of U. S. 
Washington. 



-<*- 



BRIEF OP FACTS. 

The claimants in this case assert the liability of the government of 
the United States to indemnify them for the losses sustained herein, \ 
upon the following brief of facts : 

1st. That immediately after the outrage was committed by the 
British fleet upon the American brig, the Portuguese government 
acknowledged its liability to the United States; charged the viola- 
tion of the neutrality of the port upon England; and demanded an 
apology and indemnification from that government, which was 
accorded. (See letter from the Marquis de Aguiar to Mr. Sump- 
ter, and enclosures in Sen. Doc. No. 14, 1st ses. 29th Cong. p. 22 
et ante to 12.) 

2d. That every administration of this government, from Mr. 
Madison's down to President Taylor's, has admitted, recognized, 
and asserted the rights of the claimants. ( See letters of instruction 
from the Department of State in Sen. Doc. 14, ibid.) That, in 
1845, under the administration of Mr. Polk, the Portuguese gov- 
ernment, for the first time, denied its liability, and refused indemni- 
fication; and the prosecution of the claim was abandoned by Mr. 
Upshur on the ground that " argument and importunity had been 
exhausted," although the claimants' rights were never once ques- 
tioned. (See letter of Senor De Castro, Sen. Doc. 14, p. 48, and 
Mr. Upshur to Mr. Reid, and reply, ibid., p. 54.) That afterwards, 
during Mr. Polk's administration, this claim was brought before 



^^ BEIEF OF FACTS. 

the Senate of the TJmted States, by a resolution ealli.ig for the cor- 
respondence in the ease, and the Committee on Foreign Relations 
recommended its reference back to the Department of State for far- 
ther proscention, which was „rdered.-(See Mr. Atherton's report, 

May 19, 1846.) - 

3d That nnder the administration of General Taylor, the prose- 
cution of this and other claims against Portugal was renewed by a 
letter of instructions from Mr. Clayton to Mr. HopWns.-{ See let- 
ter G p 16, in Ex. Doe. Ho. of Eeps., No. 53, 1st ses., 32d 
Con-- ) Finally, on the 8th of March, 1850, Mr. Clayton, Sccre- 
tary°of State, was instructed by the President to make a peremp- 
tory demand for this claim through Mr. J. B. Clay, our charge at 
Lisbon, in opposition to the proposition of Portugal to refer th.s 
and other claims to arbitration.-{See letter U. p. 68, T. 69, Y. 

13, in Doe. 53, ibid) 

4th That on this demand being made, Portugal ottered to pay 
all the other claims, .. . Icnus. it the United States would refer 
the Armstrong elai»> to arbitration, which proposition was aga.n 
rejected, and Mr. Clay demanded his passports, and loft for France. 
-(See letters Y, X, AA, BB, p. W to 81, and BBB, 112. ,n Doc. 

^^'s^That pending this negotiation the Portuguese government 

made /«*r «*»--'« »/ "' «»'''''* '^^ "'""« ""^ Tn . 
acknowledgments of the English government.-(See letter I Count 

Tojal to Mr. Hopkins, p. 34, and letter L, to Mr. Clay, p. 51, nd 
M Clay's reply, M, p. 64, Mi.) That Portugal «rer .A«<W 

tion for the destruction of the brig, up to this t,me.-(See letter 
Mr Hopkins, H, p. 81, m:) That Mr. Clay demanded cop.es of 
Th d^.omat. correspondence between Portugal -d England 
this subject, which was rcfused.-(See letter K, p. 46, .W.) That, 
r tJ^Ung, England wa, constantly ........ - . J^ 

,i,,io., and furnishing communications and o.rs^«nU to Portusal. 

(See letters N, p. 5'7, and P, p. 62, ib,d.) 



BBIEF OF FACTS. XVli 

That in the meantime, the Portuguese minister at "Washington 
opened a correspondence with the Secretary of State, strenuoasly 
urging the arbitration, to which Mr. Clayton peremptorily refused, 
under instructions from the President, whose intention it was to lay 
this claim before Congress for its final action.— (See letters TT, p. 
97; No. 22, p. 180, No. 25, p. 186, and No. 27, p. 191, ZZ. p. 
110, VY. p. 99, F. 68, ibid, and private letter of Mr, Clay- 
ton, F.) 

6th. That on the 9th July, 1850, General Taylor died, previous 
to which period all negotiations had ceased, the Portuguese govern- 
ment having received the ultimatum of the President. That on the 
accession of Mr. Fillmore's administration, Mr. Webster— only 
three days after succeeding Mr. Clayton— agreed with Mr. Figa- 
neiro to accept the bonus of the payment of all the other demands, 
and arbitrate the Armstrong case.— (See Mr. Clayton's speeches, 
p. 5, 13, and 17.) Mr. Clay was informed of this acceptance, and 
requested to return to Lisbon to complete the arrangement; which, 
for the most honorable and delicate reasons, he declined.— (See let- 
ter DD, p. 83, ibid.) That on the 5tk September, 1851, Mr. Web- 
ster officially communicated to the Portuguese minister the Presi- 
dent's acceptance of the terms to arbitrate this claim.— (See letter 
BBB, p. 112, ibid.) 

7th. That the private agreement to arbitrate this claim was 
entered into without the advice, information, knowledge, or consent 
of the claimants, reversing the opinion of the previous Executive, 
and in direct violation of the plighted faith, solemnly asseverated 
to Portugal, that it would never consent to compromise the honor 
of the nation or the rights of the claimants.— (See conclusion of 
letter H, p. 33, ibid.) That on hearing of the rumor of the accept- 
ance through the newspapers, the agent of the claimants immedi- 
ately wrote to the Secretary of the State, protesting against this 
course, and begged to have the matter postponed until he could 
arrive in Washington. He was informed, however, that it was toe 
late, that the proposition had already been accepted, and the fa 

2 



Xviii BEIEF OF FACTS. 

formally announced to PortngaI.-(See letter of Mr. Keid, and Mr. 
Webster's reply, p. 9 in the printed speeches, original marked A.) 
That the responsibility was hereby fully assumed without the con- 
Bent of the claimants, and the act became established, perfect and 
complete. That the said convention was not absolutely drawn 
np until the 26th of February, 1851, seven mouths after the verbal 
acceptance.-(See letters FP and GG, p. 84, in House Doc. No. 

53.) 

8th. That this treaty or convention was submitted to the Senate, 
and ratified on the 10th March, 1851, in secret session, without 
any possible knowledge or information of the nature and circum- 
stances under which said convention was made.— (See letter GG. 
p. 84, ibid., and Sen. Doc. No. 1, 1st Session 33d Congress.) 

. That the first article of said convention declares the conditions 
under which said treaty was made, and that the consideration of the 
bonus, for which this claim was agreed to be arbitrated, is set forth 
in the fourth article of said treaty.-{See Treaty in Appendix.) 

That said treaty is imperfect and defective, and was made in vio- 
lation of all principles of justice, and without a strict regard to 
the protection of the rights of the claimants : first, because said 
treaty, under the second article, has for its only object the decision 
of a point of public law, which is not expressed or set forth in 
such a manner aS to compel the finding of the arbiter to be con- 
fined to any particular point of law or statement of facts ; seco7id, 
because, under said second article, it is provided that the claim only 
" in behalf of the captain, officers, and crew of said privateer should 
be submitted to the arbitrament," while the claim in behalf of 
the owners of said brig General Armstrong, is wholly disregarded, 
omitted, and unprovided for, under said convention, consequently, 
the claim of said owners was never submitted to arbitration ; third, 
because, under the third article of said convention, it is not stipu- 
lated that the arbiter shall hear and decide upon the law and the facts 
which shall be submitted by the claimants through their government, 
as well as on the part of Portugal. Fourth, because, by the third arti- 



BRIEF OF FACTS. XIX 

cle of said treaty, the evidence is confined to the correspondence only, 
at Lisbon, which has passed between the two governments, in refer- 
ence to said claim ; and the protocol drawn up by Mr. Webster, in 
the nature of instructions as to the mode and terms of submitting 
the case to the arbiter, excluded all the important correspondence 
of 1814, at Rio de Janeiro, between the Portuguese and British 
Ministers ; the letter of admission from the Portuguese to the 
American Minister ; the -letter of the British Consul ; Captain 
Reid's protest, and other documents contained in Sen. Doc. 14, 1st 
sess. of 29th Congress.— (See HH, p. 85 ; KK, p. 86 ; and LL, 
p. 81, Doc. 53 ; and copy of Protocol, marked No. 1.) 

9th. That on the 1th July, 1851, the claimants, by their agents, 
filed at the Department of State a written argument ; and statement 
of facts, which he requested to be sent to our minister, that the 
claimants might be properly represented before the arbiter, but he 
was verbally refused, on the ground that the terms of the treaty pre- 
cluded it. — (See argument submitted to the Department of State in 
the JNtemorial, p. 12.) The agent afterwards addressed two notes 
to the Secretary of State, urging this request, but received no 
answer. — (See letters B and C to Mr. Webster.) The agent then 
addressed himself to the President, desired to be sent to France 
with the papers and documents, and that he might be authorized to 
present the case of the claimants through Mr. Rives, the American 
minister at Paris, to the arbiter, which was also refused, — (See let- 
ter from Mr. Crittenden, acting Secretary of State, marked D.) 

10th. That on the 9th of June, 1851, Mr. Hadduck concluded 
the protocol, and sent the papers to Mr. Rives at Paris. — (See let- 
ter LL, p. 81, in House Doc. No. 53 ; letter of Mr. Thomas, 
assistant Secretary of State, marked No. 2.) On the 1st Novem- 
ber, 1851, the President of France accepted the oflBce of arbiter. 
Subsequently, Louis Napoleon became "Prmce President," and 
on the 29th November, 1852, one year after the case was sub- 
mitted, Mr. Rives was informed that a decision had just been 
rendered.— (See Sen. Doc. No. 24, 2d sess. 32d Congress, p. 2.) 



XX BEIEF OF FACTS. 

That on the 10th December, 1852, Mr. Rives was informed by 
the French Minister that the Emperor had deputed him to deUver 
the award in his name, and that said award was delivered the next 
day accordingly, in the name of the Emperor of France, contrary 
to the treaty stipulation, which referred the case to the Pren4ent of 
Fro,nce.-{See letter of Drouyn De L'Huys, p. 3, ihd , and Mr. 
Rives to Mr. Everett, p. 1, ihid.) 

nth. That as soon as the award of the Emperor of France was 
made public, the claimants, by their agent, entered a solemn pro- 
test against its acceptance by the -dnited States ; (See copy of 
Protest, letter No, 3.) but was informed by letter from Mr. 
Everett, Secretary of State, marked E, dated Uth February, 1853, 
that " the award of the arbiter in this case must be considered 
as decisive " This declaration was reiterated in Mr. Marcy's letter 
to the President, in Sen. Doc. No. 7, 1st sess. of 33d Congress. 

12th That said award does not comply with the terms of the 
treaty creating the arbitration, because it does not decide any 
point of pubhc law involved in the case.-(See letters of Mr. Hop- 
kins H pp 26 and 27. Count Tojal, I, p. 3t. Mr. Clay, M, p. 
56 Ind' Q. p. 65, in House Doc. No. 53.) That the statements 
upon which said award is founded are perverted and in violent 
contradiction of the facts and evidence. That said award was 
evidently drawn up by the Portuguese official, as it is in the 
language of the arguments used, and is in the form of the execu- 
tive decrees of Portugal.— (See p. 125, ibid.) 

That it shows on its face that the information obtained in regard 
to the facts were received from the Portuguese representative, and 
that he was evidently permitted a hearing, while the claimants were 
in no manner represented. 

13th. That the reasons assigned in said award are totaHy at 
variance with and in contradiction of themselves : 1st because it 
charges the violation of the neutrality equally on the part of both 
the belligerents ; 2d, because it assigns for non-liability the weak- 
ness and disability of the island of Fayal, to afford protection, 



BRIEF OF AUTHOEITIES. XXi 

wbile it alleges that Captain Reid did not apply from the beginning 
for intervention, but had recourse to arms, " which released the sove- 
reign of the obligation in which he was to afford protection by any 
other means than that of pacific intervention.^^ — (See award ia 
Appendix.) 

That said award is disrespectful and insulting to this government, 
because it advances among other reasons, an act in defence of 
the Portuguese governor, which was considered reprehensible at 
the time, and in conjunction with the committal of an act, with the 
permission of said governor, by the British oflScers against the 
American sailors, which had been justly rebuked by Mr. Clay as 
insulting.— (See letter K., pp. 47 and 48, ibid) 

It is under these circumstances the claimants ask to be indemni- 
fied by their government for the losses sustained and claimed in 
their petition. 



-♦»- 



BRIEF OF AUTHORITIES CITED ON THE PART OF 

THE CLAIMANTS. 

1. Of Jurisprudence as enlarged by legislative authority, with 
increased power of establishing justice. Ordinary courts of law 
are not created to declare or enforce justice in the abstract, or jus- 
tice in general. See note A to De Bode vs. Regina, 13 Queen's 
Bench Rep., 387. Jackson vs. Bartholomew, 20 Johnson's Rep., 28. 
Story's Eq. Jur., §§ 8, 9. 

2. Whatever leads to hostility in neutral territory, as well as 
direct hostility between belligerents, is forbidden by the law of 
nations. Wildman's International Law, 2 vol., 148. Case of The. 
Twee Gebroeders, 3 Rob. Rep., 164. The Ann, 3d Wheaton's 
Rep., 435. The Mariana Flora, 11 Wheaton, p. 1. 

3. The loss arising out of the violation of neutrality, must be 
made good by the neutral government. Case of IVie Ann, ibid; 
Kent's Com., vol. i. p. 122. Bynkershoeck, b. 1, c. 8. De Jure 



Xxii BRIEF OF AUTHORITIES. 

Maritimo, b. 1, c. 1. p. 13. Flander's Maritime Law, p. 45. Caae 
of the French ship Grange, captured by the English in the Chesar 
peake Bay. Jefferson's letter to Penant, 3 vol. Jeff, works, 232. 
Opinions of Attorney General, vol. i., p. 33. Report of the Com- 
mittee on Foreign Relations of the U. S. Sen., Jan., 1817, in 
case of The Armstrong. Twe, Gebroeders, 3 Rob. Rep., 162. 
1 Wheaton, 405 ; 4 Wheaton, 52 ; Ibid., 298. 

4. The indemnity due must be obtained by the neutral at his 
own expense, and at all hazards. Duponceau's Law of War, p. 60. 

5 The admissions of Portugal's liability to the United States, 
and her demand against England. See Letters of the Marquis do 
Aguiar to Mr. Sumpter, the American Minister at Rio, and to the 
British Minister, Lord Strangford, 22 Dec, 1814. 

6 The liability of Portugal in this case has been uniformly 
asserted by our government. (See instructions.) Monroe to 
Sumter, 3d January, 1815 ; Adams to de Serra, 14th May, 1818 ; 
Dickens to Kavanagh, 20th May, 1835 ; Forsyth to Kavanagh, 22d 
October 1835 ; Webster to Barrow, 15th January, 1842 ; Web- 
ster to Barrow, 18th August, 1842 ; Clayton to Hopkins, 20th 
April 1849 ; Clayton to Clay, 8th March, 1850. 

1 Liability of the government for its mis-conduct and neglect in 
the "prosecution of the claim. Sheels vs. Blackburne, 1 Henry 
Blackstone, 158 ; Fellows vs. Gordon, 8 B. Monro, 415. 

8. The government is bound to protect its citizen, and obtam 
redress whin spoliated by a foreign government, or become itself 
responsible. Wendell's Blackstone, pp. 370, 371, and notes ; 
Baron de Bode's case, 16 Eng. L. and Eq. Rep., p. 23 ; Farnham 
vs. Brooks, 9 Pickering's Rep., 239 : See Denio, Ch. J., 3 Kernan's 
N Y *Rep . 149- (See Decision of British Commissioners in the 
case of the' Hudson Bay Company vs. the United States, reported 
in adjustment of claims under the convention of 8th February, 
1853, with Great Britain, p. 165, in President's Message of 

Aug. 11, 1856.) 

9. m accepting a propositiou to arbitrate a case, the several 



BBIEF OF AUTH0EITIE8. XXUl 

parts of the offer cannot be separated, it must be accepted or 
rejected in toto. 2d Sandford's Chancery Rep., 244. 

10. In submitting the case to arbitration, without the assent of 
the claimants, and refusing them the right to be heard in any man- 
ner by the arbitrator, either as to the law of the case, or by the 
production of evidence as to the facts. See Elmendorf vs. Harris, 
23 Wend. 633 ; Jordan vs. Hyatt, 3 Barb., s. c, 215 ; Oswald vs. 
Gray, 29 Eng. Law and Eq., 88 ; Emory vs. Owings, 7 Gill., 488; 
Kyd on Awards, 95 ; Falconer vs. Montgomery, 4th Dallas's Rep., 
233 ; Sharp vs. Bickerdike, 3d Dow's Parliamentary Rep., 102. 

11th. In accepting the award as final and conclusive, when it 
should have been rejected as not responding to the terms of the 
submission. Vattel's Law of Nations, p. 271 ; Wildman, vol. 1 
p. 186 ; Steers vs. Lashel, 1 Esp. N. P. C, p. 16T ; Oxenhan vs. 
Lemon, 2 Dow. & R, 461 ; Vattel, book 11, ch. 18, § 239. 




REPORT 



OF THE 



ARGUMENTS. 



ARGUMENT OP SAM C. REID, JUK, ESQ. 

IN THE CASE OF THE CLAIMANTS OF THE PRIVATE ARMED BRIG GENERAL 
ARMSTRONG. BEFORE THE U. S, COURT OF CLAIMS, SITTING IN THE 
NATIONAL CAPITOL. 

Washington, Saturday, November l*lth, 1855. 

This cause came on to-day by consent. Present their Honors 
John J. Gilchrist, Chief-Justice ; Isaac Blackford, and 
George P. Scarburgh, Associate Justices. 

The Claimants were represented by Charles O'Conor, Esq., and 
Sam C. Reid, Junior, of New York ; Hon. P. Phillips, of Alabama, 
and Hon. Charles Naylor, of Pennsylvania. 

Hon. Montgomery Blair, TJ, S. Solicitor, appeared for the 
Government. 

Mr. Reid, on opening the case, addressed the Court as follows : 

May it please the honorable Court — 

I present myself before your honors to-day to vindicate a prin- 
ciple of national faith, to substantiate the oath of American honor, 
and to verify a great national and historical fact, denied both by 



10 BEIG GENERAL AEMSTRONG. 

Portugal and England, and solemnly declared to be false by the 
public decree of France. 

In doing so, I shall expose the most remarkable diplomatic nego- 
tiation to be found on record ; which reflected as great discredit by 
the course pursued, as the gallant and brave defence made by the 
vessel shed glory and splendor upon the country. 

Sirs, this is a case in which not only the claimants are interested : 
it is a cause in which every patriot, every American, has a deep, 
absorbing interest, so far as the honor of his own country is 
concerned. 

I shall ask the great indulgence of this Court, as I proceed to lay 
before it the evidence to establish the facts alleged, and I beg your 
honors will extend to me your liberal forbearance and attention,* 

The petition charges that, on the 26th and 2tth of September, 
A.D. 1814, the United States private armed brig General Arm- 
strong commanded by Captain Sam C. Reid, belonging to the port 
of New York, was destroyed by a large British fleet in the neutral 
port of Fayal, in the Dominions of Portugal, in violation of the laws 
of nations. That the Government of Portugal, immediately after 
the transaction, admitted her liability to this Government, and 
called upon England for an apology and indemnification, which was 
unhesitatingly accorded. That the United States Government, 
from the inception of this, claim to the present day, has always 
acknowledged the rights of the claimants as legal and just. That 
under the administration of General Taylor, a fleet was sent to 
Portuo-al and a peremptory demand made for this claim. That 
afterwards the Government of the United States made a treaty 
with Portugal, whereby she compromised the rights of the claimants, 
and for a bonus agreed to refer the "Armstrong Claim" to arbitration. 
That Louis Napoleon, the Umpire, decided adversely to the claim- 
ants, and contrary to the law and evidence, and the facts in the 
case, and in violation of his oath as President of the Republic of 
France, the decision having been rendered by the " Emperor of 
France." That the treaty and agreement made with Portugal to 

♦ See Appendix for documents read in evidence. 



V 



ARGUMENT OF SAM C, EEID, JK., ESQ. 11 

arbitrate this claim was made without the knowledge, conseat, or 
advice of the claimants or their agent. That the Government of 
the United States never protested against said award as being 
illegal, unjust, and contrary to the articles of the treaty in this 
case made with Portugal, although she was fully aware of the 
same.- 

That the Government of the United States, in making said treaty 
with Portugal, without the knowledge, advice, or consent of the 
claimants, assumed the responsibility, and undertook, and promised 
to pay the claimants their justly-recognized demands against Por- 
tugal, to wit: the sum of one hundred and thirty-one thousand and 
six hundred dollars, being the amount recognized by this Govern- 
ment and demanded of Portugal. 

That the facts herein contained all appear in the following docu- 
ments, which are prayed to be filed herewith, and made a part of 
this petition, to wit : 

No. 1. "The memorial to Congress of Sam C. Reid, jr." — (Sen, 
Mis. Doc. No. 14, 1st sess. 33d Congress.) 

No. 2. " Message of the President of the United States," con- 
taining the correspondence, &c., from 1814 to 1844, in Sen. Doc. 
14, 1st sess. 29 Congress. 

No. 3. " Convention and treaty with Portugal." 

No. 4. "Message from the President of the United States," con- 
taining correspondence, &c., between this Government and Portugal, 
in Ex. Doc. No. 53, Ho. of Rep. 1st sess. 32d Congress. 

No. 5. " Correspondence and award of Louis Napoleon," in Ex. 
Doc. No. 24, Senate 2d sess. 32 Congress. 

No. 6. " Reports of Committees in Senate and House of Repre- 
sentatives." — (1st sess. 33d Congress, No. 151 Senate, and 139 
House of Representatives." 

No. v. Debate on the bill in the Senate, in speeches of Ho.,, 
Messrs. Clayton, Brown, Bayard, Seward, Weller, Cass, and 
Houston. 

Your petitioner further represents that the said claim was pre- 



12 BRIG GENERAL ARMSTRONG. 

sented to the Congress of the United States on the 19th day of 
January, 1854, and referred to the Committee on Foreign Relations 
in the Senate. Said Committee, on the 10th day of March, 1854, 
reported in favor of said claimants ; which said report and accom- 
panying bill have been made parts of this petition. On the 26th 
day of January, 1855, the bill was ordered to be engrossed for a 
third reading, by a vote in the Senate of ayes 22, nays 17, which 
vote was afterwards reconsidered on the 16th February, 1855, and 
the bill ordered to lie upon the table by a vote of ayes 24, nays 23. 

Your petitioner further represents that the said claim, having 
also been presented to the House of Representatives, the Committee 
on Foreign affairs, to whom it was referred, reported in favor of the 
claimants on the 29th of May, 1854, which said report and accom- 
panying bill have been made parts of this petition. That said bill 
for the relief of the claimants failed to be acted upon by the House 
of Representatives for the want of time, and was, by a resolution 
of that body, transferred to this honorable court. 

Therefore your petitioner prays that, in consideration of the pre- 
mises, after investigation and argument herein, a bill be reported 
by this honorable court for the relief of the owners, oflBcers, and 
crew of the United States private armed brig General Armstrong, 
the claimants in this case, to the Congress of the United States, 
appropriating the sum of one hundred and thirty-one thousand six 
hundred dollars, to be paid to the said claimants, or to their legally 
authorized representatives, out of the treasury of the United States. 

And, in duty bound, your petitioner will ever pray, &c., 

SAM C. REID, Jr. 

Agent and Attorney for Claimants. 

District of Columbia, 
City and County of Washington. 

Personally appeared before me, the undersigned, Sam C. Reid, 
Jr., one of the claimants in the above case, who, being sworn, made 



ARGUMENT OF SAM C, REID, JR., ESQ. 13- 

oath that the matters contained in the annexed printed statement 
ai-e true, to the best of his knowledge and belief. 

SAM C, REID, Jr. 

Sworn and subscribed before me this 13th day of July, a.d. 1855. 

W. P. WILLIAMS, Notary Public. 

Mr. Reid here proceeded to read to the Court the following docu- 
ments as evidence in support of this case. [See Appendix.] 



Monday November IStk, 1855. 

Mr. Reid, on offering in evidence the letter of Mr. Chas. W. 
Dabney, U. S. Consul at Fayal, to Mr. Wm. L. Marcy, Secretary 
of State, 

Mr. Blair objected, and said— I do not know what are the con- 
tents of the letter the gentleman proposes to read or what he 
intends to prove by it. The gentleman has already read several 
papers to the Court not included in, or made part of his petition, 
and I shall insist on his confining himself solely to the documents in 
the petition. 

Mr. Phillips rose to explain, and said — May it please your 
Honors, the letter in question is of a remarkable character, and 
goes to establish the fact, beyond all dispute or cavil, that the 
British were the first to violate the neutrality of the port of Fayal. 
The existence of this letter was discovered but a few days ago, by 
Mr. Reid, from an incidental conversation with a gentleman, late an 
officer of our navy, who visited Fayal about a year ago, and who 
had conversed with Mr. Dabney on the subject. I, therefore, move 
that the petition be amended, and that this letter and the other 
documents, not alluded to in the petition, be made a part thereof. 
Mr. Blair opposed the motion. 



14 BRIO GENERAL ARMSTRONG. 

Mr. Reid. If the Court please, the course pursued by the learned 
solicitor, on this occasion, is very remarkable. He has sat by, 
listening to the reading of documents and letters used against the 
claimants iu the debate on this claim in the Senate (not referred to 
in the petition) and took no objection, because the evidence was 
supposed to run in favor of the government. He has heard me 
read private letters produced against the claimants by the Depart- 
ment of State, charging them with having acquiesced to this arbi- 
tration, and no objection was taken whatever. But when I come to 
read a piece of newly-discovered evidence — a public letter to this 
government, tending to establish the rights of the claimants, the 
learned solicitor objects 1 . 

Sirs, I have concealed nothing in this case. I have put every 
particle of evidence before this Court, for and against the claim- 
ants. The learned solicitor asks what this letter contains ? Sirs, it 
contains the truth — the very essence of this case. It contains the 
statement of a distinguished gentleman, widely known on both sides 
of the Atlantic, for his nobleness of character, for his honor and 
probity. A gentleman, whose princely position and wealth puts 
him beyond the reach of suspicion or temptation ! I appeal to the 
magnanimity of the solicitor, and ask him whether his duty, as a 
government officer, prompts him to make these technical objections 
in a case of this character, or whether it should not urge him to 
adopt a nobler course — that of the highest equity ? I hope the 
motion of my learned colleague will prevail. 

By the Court [after consultation]. Leave to amend the petition 
will be granted, and the documents considered as made a part 
thereof. 

The letters marked A, B, C, D, E, and F, and documents marked 
[1, 2, 3, and 4] were then made part of the petition. 

Mr. Reid having read Mr. Dabney's letter, and other documents, 
here rested the case, and it being near three o'clock, the Court 
adjourned. 



ARGUMENT OF SAM C. REID, JB., ESQ. 15 



Tuesday, November 20iA. 

The Court met pursuant to adjournment. The evidence having 
been closed, 

Mr. Reid, in summing up, spoke as follows : 

May it please the honorable Court — 

I come now to the argument of this cause, upon the evidence 
which has been laid before it. 

I come to the argument of this cause with deep and powerful 
feelings of a sense of wrong and injury, which have been heaped upon 
the claimants for nearly half a century ! I will not conceal that I 
come to it exultingly, and that I have looked forward to this hour 
with an intense and painful interest. 

I shall permit no scruples of policy to guide my course, and I 
shall speak in plain language as being the best adapted to the 
vindication of truth, of honor, and of justice, which have so long 
been made subservient to the miserable falsehoods, prevarications, 
and weaknesses of unjust men I 

Assuming the doctrine laid down by the most distinguished com- 
mentators and publicists on international law, be true, that the 
violation of the port or territory of any neutral power by a belli- 
gerent, and the capture of property, public or private, under the 
protection of the neutral flag, imposes on the neutral power a lia- 
bility to indemnify the owner for all losses sustained, I shall pro- 
ceed to fix the liability, in this case, first, upon Portugal. 

We charge that the brig General Armstrong was attacked and 
destroyed by the British fleet, in violation of the laws of neutrality, 
and of the protection which that vessel sought in the neutral port 
of Fayal. To support this fact, we have the sworn protest of 
Captain Reid, and nine of his officers ; the letters of John B. and 
Charles W. Dabney, U. S. consuls at Fayal ; the statement of 
Governor Ribeiro ; and the letters of the Marquis de Aguiar, the 



16 BRIG GENERAL ARMSTRONG. 

Portuguese Minister of State, to Mr. Sumpter and Lord Strangford, 
the American and British ambassadors at Rio Janeiro. 

It must be remembered that the statement of Gov. Ribeiro to 
his government was his voluntary act, founded upon official reports 
made to him by the officers of the Castle, and what he himself wit- 
nessed. In this statement, the violation of the neutrality of the port 
of Fayal is expressly charged against the commander of the British 
fleet. In describing the affair, the Governor says : 

" We are now, for the first time, viade witnesses to a horrible and 
bloody combat, occasioned by the madness, pride, and haughtiness 
of an insolent British officer, who would not respect the neutrality 
maintained by Portugal, in the existing contest between his Britannic 
Majesty and the United States of America." 

The Marquis de Aguiar, in his letter to Mr. Sumpter, says : 

" Nor can his royal highness avoid viewing this affair, in the 
light it is represented, as attacking his sovereignty and independ- 
ence, by the manifest violation of his territory in the infringement 
of its neutrality, which ought to have been observed by the two 
belligerent powers. Not a moment's delay ensued in causing to be 
addressed to the British minister at this court the note which is 
confidentially communicated by a copy to your lordship, at the same 
time that he directed his minister in London to make the reclama* 
tion so serious an offence requires." 

In the letter of the marquis to Lord Strangford, the language is 
unequivocal. He says : 

"His excellency will likewise observe the lase oAtempt of the 
British commander, at the time he commenced the unprovoked 
attack on the American privateer, to attribute those violent meas- 
ures to the breaking of the neutrality on the part of the Americans 
in the first instance, by repelling the British armed barges that were 
sent for the purpose of reconnoitering that vessel, advocating, with 
the most manifest duplicity, that they were consequently the aggres- 
sors ; but what appears still more surprising, is the arrogance with 
which the British commander threatened to consider the territory 



AEGUilENT OF SAM C. KETD, JR., ESQ. 17 

of his royal highness as enemies, should the goTernor adopt any 
measures to prevent them from taking possession of the American 
privateer, which they subsequently plundered and set on fire 1 

" His royal highness, at the same time that he has directed his 
minister nt the court of London to make the strongest representa- 
tions before the prince regent of the United Kingdom of Great 
Britain, and require satisfaction and indemnification, not only for his 
subjects, hut for the American privateer, whose security was guaran- 
teed by the safeguard of a neutral port, orders it to be signified to 
his excellency, Lord Strangford, that he may inform his government 
of the unfavorable impression the conduct of that British commander 
had caused in the mind of his royal highness," &c. 

Here, then, is the open avowal and admission, on the part of Por- 
tugal, of her responsibility to the United States ; and a demand 
made by the prince regent of Portugal, of his own free will and 
accord, for satisfaction and indemnification from England, before he 
was ever called on by this government to make indemnity. 

In 1814, in compliance with the demand made by Portugal, Lord 
Bathurst instructs Mr. Canning, the British ambassador at Lisbon, 
to make a verbal apology to the prince regent. 

In 1815, Mr. Monroe instructs Mr. Sumpter to call the attention 
of the Portuguese government to this case, " and to state the claim 
which the injured party has to immediate indemnification." Mr, 
Sumpter replies, that a demand for satisfaction had already been 
made from the British government. 

In 1817, Lord Castlereigh, in obedience to the demand of Por- 
tugal, sends iEol9 to indemnify the subjects of that government. 
Now, why the indemnity demanded for the loss of the Arrastrono* 
was not sent, or the grounds of England's refusal stated, we do not 
know, for we never have had the benefit of any of the correspond- 
ence between Portugal and England. But it is not material at this 
point to make the inquiry. It is sufficient that the fact of Eng- 
land's apology and indemnification to Portugal stands patent and 
incontrovertible With what assurance, then, can England attempt 

3 



18 BlilO GENKRxVL AliMSTRONG. 

to charge on this government the very offence for v?hich she had 
made reparation and apologized for thirty years ago ? 

In 1818, Mr. J. Q. Adams reiterates the demand against Portu- 
gal, in his letter to the Chevalier de Serra, who is informed that 
this claim has been admitted by the acknowledgments of the officers 
of his own government. At that time, both Portugal and England 
had before them the counter-statement of commander Lloyd, and 
the affidavit of Lieutenant Fausset (the latter made 27 th September, 
1814), and neither government charged Captain Reidwith violating 
the neutrality of the port of Fayal. 

Why did not Portugal the.n inform the United States that Eng- 
land had refused to make indemnity for this vessel, and " at thai 
time,"" in the language of Count Tojal, " every motive had ended for 
expecting the British government to accede to the claim of his 
majesty's government for indemnification of the loss of said pri- 
vateer ?" 

Why was not Lord Strangford immediately instructed by his 
government to reply to the withering charges made against com- 
mander Lloyd, whose conduct had been stigmatized in such unmeas- 
ured terms ? Why was not Portugal made to retract the language 
and apologize, instead of the apology and indemnity made by 
England ? and why was not a demand for an apology and indem- 
nification presented against this government for the outrage com- 
mitted? Because the damning guilt of Commander Lloyd had 
been too strongly established, and he, as well as Governor Ribeiro, 
had been reprimanded by their respective governments. 

Look at the falsehood and villainy of this lago Lloyd, through 
whom England has since taught Portugal that the honor of her 
Desdemona was false ! What does he say in his letter to the 
Governor of Fayal, written about two hours after the first attack : 
" Sir — Permit me to inform you that one of the boats of his 
Britannic majesty's ship under my command, was, without the slight- 
est provocation, fired on by the American schooner General Arm- 
strong, in consequence of which two men were killed and seven were 



AEGtJMENT OF SAM C. EEID, JB., ESQ. 19 

wounded, and that the neutrality of the port, which I had determined 
to respect, has been thereby violated . In consequence of this out- 
rage, I am determined to take possession of that vessel, and hope 
that you will order your forts to protect the force employed for thai 
purpose. 

'" With due respect, I remain, sir, your obedient servant, 

" The Commander 
" Of his Britannic Majesty^ s Forces." 

1 challenge tne production of any epistle of equal brevity, con- 
taining so many unqualified falsehoods, and so much arrogant 
impudence. Why, sirs, he knew every word of it was false at the 
time he penned it, and his innate consciousness of the fact made him 
ashamed to sign his name to it I I will now read Mr, Charles W. 
Dabney's letter, which has been sleeping for over two years in the 
Department of State, and which burst upon us like a gleam of sun- 
light on a dark gloomy tower, with all the eflfulgence and brilliancy 
of living truth : 

"[No. 169.] Consulate of the U.S. for the Azores. 

" Fayal, May 21, 1853. 
" Sir— The award of his majesty Napoleon III., in the case of the 
General Armstrong, having just met my eye, I feel impelled, by a 
regard for our national honor, as well as justice to the actors in that 
unparalleled affair, to disavow, on their part, the slightest infrino-e- 
ment of the neutrality of this port. The pecuniary amount is of nc 
consequence to ns ; but I cannot allow the brilliancy of that action 
to be tarnished, or the slightest stain to rest on our national 
-escutcheon. When I heard that his majesty was to be the arbi- 
trator, I felt assured that the case would be thoroughly inves- 
tigated, and that there would not be any doubt as to the result ; 
and I confess that I was sadly disappointed to find that, from some 
cause or other, the case had not been rightly understood by his 
majesty. 

** In the summer of 1814, the British sloop-of-war 'Thais' and 



20 BRIG GENERAL ARMSTRONG. 

brig 'Calypso' were cruizing on this station. Their commanders 
were prudent men. When the brig-of-war * Carnation' hove in sight 
it was supposed to be the ' Calypso,' and no apprehensions were 
entertained, as we felt assured that the commander would not 
attempt to violate the neutrality of the port. But when we w*ere 
informed that a frigate and a larger vessel were in company, we 
concluded that it must be the razee Plantaganet, frigate Rota, and 
brig Carnation, under the command of Mad Lloyd * (the same that 
made the senseless attack on Crany Island), who had been here 
three weeks hefore, and had boasted that he had boats built expressly 
for cutting out American privateers, and that he would destroy 
them wherever he found -them. 

" Knowing what we had to expect, I (being then in my twenty-first 
year) was sent by my father (consul of the United States) to recom- 
mend Captain Reid to slip his cable and warp his vessel close in 
under the guns of the castle. While I was on board, the Carnation 
anchored within pistol-shot of the Armstrong, the frigate about half- . 
a-mile, and the razee about a mile distant, yet under sail, it being 
calm, and boats were passing between the English vessels. Captain 
E-eid immediately gave orders to carry into effect the advice that I 
had conimunicated to him, and I came on shore ; just as I was 
landing (ten minutes after I had left the Armstrong), I heard the 
report of musketry ; and soon after, a Captain Smith, who had gone 
on board to see Captain Reid, came on shore with a message from 
the latter, informing us that, while in the act of warping in, he had 
been approached by four boats, containing, by estimate, one hundred * 
and twenty men ; that they were warned repeatedly not to approach, 
or that he would fire into them ; which, instead of heeding, only 
seemed to stimulate their exertions ; and, as there could be no 
mistake of their intention to take them by surprise, no attention 
being paid to the warning, he had ordered his men to fire, which was 
immediately returned from the boats, killing one man and wounding 

* A distinction bestowed upon him by his own countrymen. 



AHGUM2NT OF SAMUiSL C. RlilD, JR., ESQ. 21 

the lirst-lieuteaaat ; but, having found theh* reception too warm, 
they sued for quarter, which was immediately granted (they were 
then nearly alongside of the Armstrong). Captain Smith was 
deputed by Captain Reid to request my father to take the necessary 
steps for his protection, and I was sent in quest of the governor, 
whom I found at Judge Arriaga's, a mile from town. I was com- 
missioned to request him to remonstrate with Captain Lloyd (the 
force under his command being wholly inadequate to cope with that 
of the British squadron) and to allow us to send thirty-two Ameri- 
can seamen that we had here to assist in defending the Armstrong, 
should she be again attacked. The latter request the governor said 
he could not grant, as it would be an infringement of the neuti'ality 
on his part, but he accompanied me forthwith to town, and no time 
was lost in dispatching one of his aids with an oflScial remonstrance. 
Captain Lloyd returned a verbal answer, indicative of his intention, 
and three hours after the grand attack was made on the Arm- 
strong, then within forty yards of the Castle. 

"These simple facts require no comment, as they admit of no 
doubt. If there could be any doubt, the character of the commander 
is a circumstance of the greatest importance iu forming a correct 
opinion of the case. 

" I send a plan of the harbor, showing the relative position of the 
Armstrong during the first and second engagements. 

" I trust that my motive in addressing yoii on this occasion will 

be appreciated, and, with the highest consideration and respect, 

have the honor to be, sir, , 

^* Your most obedient servant, 

" Chas. W. Dabney. 
** Hon. W. L. Marcy, 

" Secretary of State, TJ. S. 

*' I am conversant with the French language, and, if necessary, 

would willingly go to Paris to afford any explanation that may be 

required. 

^' Dabney. 



22 BKIG GENEJKAL ABM8TKONG. 

" I can prove that the British vice-consul, who was then residing 
on the opposite shore of Pico, sent a letter on board the commo- 
dore's vessel two hours before they anchored ; consequently there 
was no necessity for ' reconnoitering ' with four boats full of armed 
men." 

" United Stales of America, Ikpartment of Stale : 

"■ To all whom these presents shall come, greeting .- 

" I certify that the paper hereunto annexed is a true copy, trans- 
cribed from and carefully collated with the original paper on file 
in this department. 

" In testimony whereof, I, William L, Marcy, Secretary of State 
of the United States, have hereunto subscribed my name, and caused 
the seal of the Department of State to be affixed, 

•' Done at the city of Washington, this first day of November, 

A. p. 1855, and of the independence of the United States of America 

the 80th. 

" W. L. Marcy." 

None bnt a true patriot — none but a chiTalrous, high-toned man 
of honor, could have written such a letter. And what does this 
glorious son of a noble sire say ? He tells this government " the 
jpecuniary amount is of no consequence to us,^' but he " cannot allow the 
brilliancy of that action to be tarnished, or the slightest stain to rest on 
our national escutcheon /" It is upon this principle, sirs, that I have 
prosecuted this claim. It is the national and individual point of 
honor that I stand here to-day to vindicate, and I am deeply 
indebted to Mr. Chas. W. Dabney for his assistance in enabling me 
to sustain it. 

Mr. Dabney states that, while he was on board the brig General 
Armstrong, the Carnation anchored within pistol-shot of the Ameri- 
can brig, and at that time, it being calm, boats were passing between 
the English vessels. This, sirs, was a part of the suspicious move- 
ments which Mr. Dabney's father speaks of, and which induced that 



AEGDMENT OF SAM C. REID^ JR., ESQ. 23 

noble gentleman, the late Hon. Jolm B. Dabney, to send his son 
aboard Captain Reid's brig, to advise him to warp his vessel in 
under the guns of the Castle. We see that Captain Reid took this 
advice, and commenced warping in his vessel, and that young 
Dabney had hardly landed ashore from his boat when the English 
attacked the Armstrong, and the report of musketry was heard. 
The very position of the British vessels shows the unmistakable 
intention of the English at the time. [Mr. Reid here demonstrated 
on the map of the harbor of Da Horta, sent by Mr. Dabney, the 
position of the Armstrong during the three several attacks, and the 
position of the English ships and boats.] The evidence is indisput- 
able that Captain Reid took all prudent measures in his power to 
avoid a collision, and to prevent a violation of the laws of neutrality. 
No provocation, at that time, could have induced Captain Reid to 
fire a gun, to jeopardize his safety, except in actual self-defence and 
eelf-preservation. The very assertion on the part of the English 
that Captain Reid commenced the attack against so overpowering a 
force, is despicable and degrading. None but a madman would have 
attempted it, and that madman, on this occasion, seems to have been 
Commander Lloyd, whose own countrymen called him mad. And 
the governor of Fayal attributes this attack to his madness, for he 
says it was " occasioned by the 7uadncss, pride, and haughtiness of an 
insolent British officer," and that all Fayal witnessed this act of his 
madness ! 

Bat if there ever was any doubt on this question before, Mr. 
Dabney has dispelled it. He tells you that Mad Lloyd had been 
at Fayal, "three weeks before'' this affair, " and boasted that he had 
boats built expressly for cutting out American privateers, and that he 
would destroy them wherever he fomid them .'" For three weeks, then, 
Commander Lloyd had harbored this confused design, which his 
plain-faced knavery afterwards put into execution ! I will call your 
Honors' attention to the particular fact that the Governor of Fayal, 
in answer to the note of " the commander of his Britannic Majesty's 
forces," says, '' I must, however, assure you, sir, that from the accounts 



24 



BKIG GENERAL AKAI8TK0XG. 



which I have received, it is certain that the British boats were the first 
to attack the American schooner.''^ Commauder Lloyd never replied 
to this note, from the same guilty consciousuess that prevented him 
from signing the first ; and this first paragon of a note was his 
last, and the only document of his which graces the history of this 
affair. Why did he not support this letter, then, with a protest, 
signed by all his officers, as the American captain did, instead of 
the weak and falsified affidavit of his tool Roclerigo — this perjured 
Lieutenant Fausset ? The answer is found in the apology of Lord 
Bathurst — no such charge could be made ! Not a syllable is 
uttered against the United States, and Portugal, convicted by the 
open declarations and recorded testimony of Governor Ribeiro, 
permits a period of sixteen years to elapse in silence. 

In 1835, this claim is renewed against Portugal by Gen. Jackson, 
in the letter of Mr. Dickens to Mr. Kavanagh. At that date, she 
did not pretend to deny her responsibility on the grounds after- 
wards assumed. In 1836, Mr. Forsyth is informed by Mr. Kava- 
nagh [p. 30, Doc. 14], that the written and verbal declarations of 
the Duke de -Pamella had induced a belief that our claims against 
Portugal would have been adjusted many months ago. The Duke 
de Pamella had at that time [as is admitted in the letter of Count 
Tojal to Mr. Clay, on p. IT, Doc. 53], renewed the demand for this 
claim against the British government. In 1837, Mr. Kavanagh 
informs Mr. Forsyth [p. 33, Doc. 14], that Portugal considers this 
claim inadmissible, because the force at Fayal was altogether incom- 
petent to protect the privateer against the assailants, and mentions 
as an off-set a large amount of ])roperty destroyed by our vessels 
sailing under the flag of Artigas. The plea here set up of the 
incompetency of the force at Fayal to protect the General Arm- 
strong, was one of the very grounds complained of by Mr. Sumpter, 
among others, in his letter to the Marquis de Aguiar [on p. 10, 
Doc. 14], in which he said he did not wish " to enhance the cen- 
sures which may be due for so utter a destitution and incapacity of 
self-defence as have been alleged to exist at Fayal." As for the 



ARGUMENT OF SAM C. EEED, JR., ESQ. 25 

plea of compensatiou, or set-oflf, I need not tell your honors tliat it 
is the admitting of one claim to counterbalance another. So, 
even up to 1837, Portugal directly admitted her liability to the 
claimants. 

Now, if your honors please, I shall show that this claim was pro- 
secuted from the year 1818, the administration of Mr. Monroe, 
down to the year 1844, the administration of Mr. Polk, a period of 
twenty-six years, without a knowledge, on the part of our govern- 
ment, of the previous admissions of Portugal, or the existence of the 
correspondence of 1814, which took place at Rio de Janeiro, 
between the Marquis de Aguiar, Lord Strangford, and Mr. Sump- 
ter. I shall show, also, that Mr. Kavanagh, our charge at Lisbon, 
made continual inquiry of our government for this very correspond- 
ence, from 1836, for over two years. And that, had this corres- 
pondence at that time been produced, Portugal never could have 
set up the defence which she afterwards did, charging that the 
Americans first violated the neutrality of her port. And I shall 
show, hereafter, that this very correspondence was quietly sleeping, 
like our friend Dabney's letter, for this whole period, on the shelves 
of the archives of the Department of State of the United States ! 

In Mr. Kavanagh's letter to Mr. Forsyth, dated January, 1836 
[on p. 29, Doc. 14], he says : "It appears that representations on 
the subject were made, in 1814, to Mr. Sumpter, then Minister of 
the United States near the Court of Portugal, at Rio de Janeiro, 
and there is no record in the archives of this legation to show the 
result thereof." 

In his letter of May, 1831 [p. 34, Doc. 14], he says : "I am 
informed that, in 1814 or 1815, General Sumpter, our minister at 
the Portuguese Court, while it was established at Rio de Janeiro, 
made representations of the case, and that a correspondence thereon 
ensued between the Portuguese government and that of Great 
Britain, but I have no knowledge of the result, and there is no 
record of the transaction in this legation." 

In his letter of September, 183T [same page], he says : "I have 



26 BRIG GENERAL ARMSTRONG. 

been lately informed, by a gentleman, that a correspondence was had 
with the British minister, in relation to the destruction of the Gene- 
ral Armstrong, but he was unable to say liow it resulted. I have 
already stated that there are not in this legation any traces of the 
correspondence between the ministers of the United States (my pre- 
decessors) and the government of Portugal, until the arrival of 
General Dearborn, in 1822. All the archives were probably taken 
to Brazil, when our first mission was established there, after the 
emigration of the Portuguese Court to Rio de Janeiro, in 1807." 

r 

Again, in April, 1838 [p. 36, Doc. 14], Mr. Kavanagh writes to 
Mr, Forsyth : " I have, as yet, no information of what was done by 
General Surapter, our minister at Rio de Janeiro, in 1814 or 1815, 
who presented the case to the consideration of the Portuguese 
government, then established there." 

Now it is evident that Mr. Kavanagh failed to recover this claim, 
simply because he was not furnished with the correspondence had 
at Rio de Janeiro, and which was all this time lying on the shelves 
of the State Department ! Well, sirs, as late as November, 1842, 
I addressed a note to the State Department [p. 43, Doc. 14], call- 
ing its attention to this correspondence, and asking for copies to be 
made out, but was informed that the Department could not employ 
clerks for such purposes. [See letter, Mr. Webster to Mr. Reid, 
p. 45, Doc. 14.] 

In 1842, under Mr. Tylers administration, this claim was again 
urged against Portugal by Mr. Webster, in instructions to Mr. 
Barrow. [See p. 40 and 42, Doc. 14.] Mr. Barrow addresses a 
note to Seuor de Castro, and is informed by that worthy minister 
that he wishes " to gather some, further particulars to elucidate this 
business ; and to that end, he will repeat the necessary orders by tht 
next packet .'" [p. 41, Doc. 14.] That he would write to England 
again, for further particulars to elucidate this business 1 

I now come to an important part of the history of this case. I 
think I can show conclusively that, at this juncture, Portugal had 
determined to make a master-stroke of diplomacy. She knew that 



AKGTJMENT OF SAM C. REID, JR., ESQ. 27 

for twenty-six years this goyernment had never once alluded to the 
correspondence had at Rio. She knew that Mr. Kavanagh had 
made inquiry for it at Lisbon, in vain. She knew that her safety 
depended upon the concealment of this correspondence. She knew 
that if this correspondence, containing the evidence of her admis- 
sions of liability to this government, was either lost or destroyed, 
we could not make out our case against her ! She believed then, 
that we had no record of De Aguiar's letters, or that of Governor 
Ribeiro ! We had, at this time, no evidence that England had ever 
apologized or paid indemnity to Portugal. This, then, was the 
reason why she wished to gather further particulars to elucidate 
this business. She wished to consult England to know if it would 
be safe to deny her liability, upon the belief that we had no evidence 
against her ; and well was she advised ! 

Having received, by the packet, the "particulars to elucidate 
this business," Portugal at last screws her courage to the sticking- 
point, and, backed by England, for the first time denies this claim, 
after a lapse of thirty years, and charges the violation of her neu- 
trality on the Americans ! Let us examine this remarkable docu- 
ment of Seiior De Castro, which will be found on p. 48, Doc, 14, 
dated 3d August, 1843. He says : "The accounts receired" [from 
England, of course] " all agree that the American brig, under the 
pretex-t that four boats from the said British vessels were approach- 
ing her, fired upon them, killing some of the men and wounding 
others." 

" It is alleged, on the part of the United States, that these boats 
contained armed men, who had a hostile intention. At the same 
time, it is affirmed, on the part of Great Britain, that they only 
carried inoffensive men, who were going ashore from their ships, on 
duty, and that they casually met the American brig when she was 
preparing to leave the port of Fayal." 

" The government of his Britannic Majesty, appreciating the rash- 
ness" [this is a bad translation ; it should read "censuring the rash- 
ness "] " with which his officers acted in a neutral port against said 



28 BRIG GENERAL AEMSTKONG. 

brig, without first recurring to the authorities of the couutry, had 
no hesitation in apologizing to the Portuguese government^ and indem- 
nifying the inhalitants of Fayal for damages sustained by the 
firing of the British vessels." 

Here is where the wily minister overleaped the bounds of his 
sagacious diplomacy. England did not intend that he should "elu- 
cidate this business " that far ! For, while he makes a vain endea- 
vor to escape from the liability imposed, he tacitly acknowledges it, 
and very clearly discloses the interference of England in this nego- 
tiation, and the fact that Portugal would never have contested this 
claim, but for the interposition of the known influence of England 
to delay and ultimately defeat the recognition and payment of this 
just demand. He asserts here, what he knew to be false, that the 
apology and indemnification made by England was a voluntary act 
of generosity ! 

This distinguished diplomat concludes his remarkable State paper 
with the following piece of Blair^s rhetoric : 

" By an analogy of reasoning, far from her Majesty's government 
being considered as bound for any indemnity for the destruction of 
the American brig, it would have every motive for asking and 
expecting an apology for the attempt committed in the Portuguese 
territory by that brig ; seeing that the first shot was unquestion- 
ably fired by her, and that the commander did not previously have 
recourse to the authorities of the country, which was only done by 
the American consul after the offensive provocation was committed 
by said brig, and that the fatal consequences were inevitable." 

In this letter, Portugal for the first time admits that England 
censured the rashness of Commander Lloyd's conduct. Count Tojal, 
in his letter to Mr. Hopkins, 29th September, 1849 [p. 34, doc. 53], 
reiterates it, and says, " that it is v:ell known that the British govern- 
ment had already, in 1817, disapproved of the conduct of Commander 
i/o^/c?, thereby giving satisfaction to his Majesty's government." In his 
letter to Mr. Clay, 9th March, 1850 [on p. 51, doc. 53], Count Tojal 
says : " In 1814, the government of her Britannic majesty, through 



AEGXTMEJiTT OF SAM C. EEID, JR., ESQ. 29 

Lord Bathurst, the minister of foreign affairs, directed Mr. Canning, 
ambassador at Lisbon, near the regency, to give the Portuguese 
government a verbal satisfaction for the occurrences which had taken 
place, and which resulted in the destruction of the privateer General 
Armstrong, in the port of Fayal, jmtifying, at the same time, the 
conduct of Commander Lloyd, in regard to the provocation given 'by 
the American privateer, which was the first to fire upon the Eng- 
lish." Again, in his letter to Mr. Clay, of 15th May, 1850 [p. 62, 
doc. 53 j, he says, " It was owing to this particular circumstance 
that the government of his Britannic majesty neither disavowed nor 
condemned the condiict of Commander Lloyd (as it has been asserted), 
bei7ig of opinion, and having likewise ahcays maintained, that the con- 
duct of Commander Lloyd was fully justified, as a mere act of retali- 
ation, provoked by the hostilities previously commenced by Captain 
Reid." And, lastly, Mr. Figaniere, the Portuguese minister at 
Washington, in his labored argument to Mr. Clayton, urging him to 
arbitrate this claim, and dated 9th July, 1850, the very day Gene- 
ral Taylor died 1 [at p. 107, doc. 53], makes this remarkable 
admission : the British government did not censure the conduct of 
Commander Lloyd, on the ground that the neutrality of the port of 
Fayal had been violated by the privateer'' s unprovoked attack on the 
boats ; nevertheless, for the reasons above stated, an apology was 
due from the British government, and accordingly was rendered to 
that of Portugal !" Here Mr. Figaniere admits that Lloyd was 
censured, but not on the ground of the privateer's unprovoked attack 
on the boats, liU on the ground of the boats' unprovoked attack on the. 
privateer ! 

Sirs, it was asserted in this court, the other day, that a greater 
opportunity was afi'orded to ascertain the truth from the lips of a 
living witness than from the written declarations of a party. 1 do 
not think so. For it is, after all, the language of the witness that 
carries with it the force of truth, or the damning falsehood ! Com- 
pare these miserable, contemptible equivocations of the Portuguese 
ministers, based on the false statements of Lloyd and Fausset, and 



30 fiRIO GEKERAL ARMSTRONG. 

instructed to that end by the English government, with the bold, 
honest, manly statement of Charles W. Dabney. No comment ia 
necessary. 

Now let us examine into the motive that induced "Mad Lloyd" 
to violate the neutrality of Portugal. Mr. Dabney says that Lloyd 
had been in Fayal three weeks before, and had boasted that he had 
boats built expressly for cutting out American privateers. In the 
letter of the British consul, "William Greaves, to the governor of 
Fayal, written on the morning of the 27th September, 1814 [p. 19, 
doc. 14]) he informs him of the intention of Commander Lloyd to 
send the British brig Carnation to fire on the General Armstrong, 
and says that, " if the said brig should encounter any hostilities 
from the Castle, or your excellency should allow the masts to be taken 
from that schooner, he would regard the island as an enemy of his 
Britannic majesty, and treat the town and Castle accordingly." 
The letter is a translation from the Portuguese ; but the language, 
" allow the masts to be taken from that schooner," means, if his 
excellency allowed the Americans to injure their vessel in her hull, 
rigging, or masts, he would regard the island as an enemy, &c. 
This letter shows the fixed determination of Commander Lloyd, at 
the moment he entered the port of Fayal, to avail himself of the 
weakness of that island and the unprotected condition of the Amcri« 
can brig, in the presence of his formidable naval force, to capture 
the brig without damage to her hull, rigging, or armament, and 
make her a useful adjunct to the naval force then concentrating at 
Jamaica, of which this squadron was to form a part, and which was 
destined for the expedition against Louisiana, and the capture of 
New Orleans. To show that Lloyd's fleet did form a part of this 
expedition, Lieutenant McKeever, tJ. S. N., who was taken prisoner 
in the action of the American gun-boats, commanded by Captain 
Thomas ap-Catesby Jones, with the flotilla of the British fleet at the 
attack on New Orleans, was afterwards confined on board the Plan- 
taganet, 74, commanded by Captain Lloyd. And, according to 
James's English Naval History, vol. 6, p. 360, we find that the 



ARGUIIENT OF SAM C. EEID, JR., ESQ. 31 

frigate Rota, Captain P. Somerville, afterwards made a combined 
attack upon the frontier town of the state of Georgia, St. Mary's, 
early in January, 1815. It was simultaneous with the burning of 
this capitol, on the 24th August, 1814, that the expedition was 
formed against Louisiana and our southern coast. Admiral Coch- 
rane sailed from Patuxent on the 19th September, 1814, to con- 
centrate his forces at Jamaica for that purpose. All the squadrons, 
and the reinforcements from England, did not arrive at Jamaica 
until the 24th November, 1814. Commander Lloyd had been 
detained at Fayal some ten days. Admiral Cochrane's fleet was 
delayed at Jamaica from the 19th to the 26th November. This is 
from the account given of " A Narrative of the Campaigns of the 
British Army at Washington, Baltimore, and New Orleans, by an 
English Officer who served in the Expeditions" [see p. 242 to 260]. 
General Jackson arrived at New Orleans on the 2d December, 1814. 
Cochrane's fleet did not arrive until four days afterwards. If this 
fleet had arrived one week sooner, nothing could have prevented the 
British from marching into New Orleans, taking that city, and the 
possession of the coast as high up the Mississippi river as they could 
hold it [see Major A. L. Latour's Historical Memoir of the War of 
1814-15, pp. 63 and 112]. This defence of the Armstrong, then, 
evidently saved Lousiana from the hands of the British. 

The motive for capturing the Armstrong, then, was a double one. 
Not only to obtain possession of this vessel, celebrated for her 
audacity and fast-sailing qualities (this being her fifth cruise), but 
to use her in the shallow waters of Lake Pontchartrain and the 
mouths of the Mississippi, in the attack on New Orleans, 

Commander Lloyd cared not to violate the neutrality of the port 
of Fayal then, when it became his interest. When did England 
ever stop to violate public law or private right, or to commit any 
outrage of pillage, or plunder, when it could subserve her ends ? 
When did she ever hesitate to pervert the truth or to falsify a 
fact? 

When, sirs, she found it necessary to violate the neutrality of 



82 BRIG GENERAL ARMSTRONG. 

Portugal, her weakness or strength was not taken into con- 
sideration. 

The same policy is carried out to this day. Have we not seen 
of late the most glaring outrage committed on our territory — com- 
mitted in violation of this same solemn compact — in utter disregard 
and contempt of our national sovereignty — ^in violation of the sanc- 
tity of the holy precincts of our national capitol — have we not seen 
Mr. Crampton, the British minister, in violation of his office, his 
honor, and of all principle, and without hesitation, violate the neu- 
trality laws of our country ? And have we not seen a British 
newspaper m New York, the Albio7i, deny the charge, and then in 
extenuation boldly assert that Mr. Crampton acted with the per- 
mission of Mr. Marcy — a falsehood only equalled by that of Com- 
mander Lloyd. 

It was this same spirit, when this capitol was attacked, that made 
the British despoil the beauty of the cold, harmless marble statuary 
— yonder monument to our gallant band of naval heroes. [Mr. Reid 
here pointed to the naval monument in front of the capitol] 

It was this same spirit that made a British ruthless villain strike, 
with his sword, the pen from the hand of the " muse of history " 
(whose womanly form alone should have protected her), saying 
that, no pen was needed to record the history of so pusillanimous a 
navy as ours !" Afterwards the gallant Commodore Thos. ap- 
Catesby Jones, with his own sword, erased the calumny with the 
blood and death of that British officer at New Orleans, and sent 
him to acknowledge the falsehood into another world !* 

Sirs, the page of history still stands blurred and blotted by 
British falsehood. Shall not, then, the pen be restored to the hand 
of the muse, the false and disgraceful record be expunged, and a 
fair page written, dictated by the decree of this honorable Court, 
establishing the holy truth ? " Magna est Veritas, et prcevakbit .'" 

* The British officer killed by Commodore Jones was Lieut. G. Pratt, of H. B. M. frigate Sea- 
horse, and the marble pen which he carried with him from Washington, as a trophy, was then 
In his wriling-desk aboard of that ship ! 



ARGUMENT OF SAM C. EEID, JR., ESQ. 33 

Well, sirs, ou'the 10th January, 1844, a letter, purporting to 
have been written by Mr. A. P. Upshur, Secretary of State under 
Mr. Polk, and signed by him, declined the further prosecution of 
this claim, on the ground that " argument and importunity have 
been exhausted, and this government can see nothing in the circum- 
stance to justify or warrant it in having recourse to any other 
weapons" [see p. 54, doc. 14]. I then urged the government not 
to abandon this claim, and, at all events, to reply to De Castro's 
letter, and leave the case in a state of perpetual demand against the 
Portuguese government [see letter of Mr. Reid to Mr. Upshur, 
p. 54, doc. 14]. Mr. Upshur having been killed on board the 
"Princeton," no reply was received to this letter, and the Hon. 
Henry Johnson, United States senator from Louisiana, was informed 
by Mr. Calhoun, who suceeeded as Secretary of State, in a letter 
dated August 5, 1844, that, " The case of the General Armstrong 
was disposed of by my predecessor upon grounds which appear 
to me judicious and proper. Of this Mr. Reid has been duly 
informed, and I can see no good reason, under the circumstances, 
for renewing the claim, or for continuing a correspondence on the 
subject." 

I think it but proper and just here to remark to your honors that 
afterwards, in a personal interview, Mr. Calhoun denied ever having 
written this letter, and stated that such was the pressure of busi- 
ness in the department, that he was forced to rely on the corres- 
ponding-clerk, as it was as much as he could do to sign letters. I 
am of opinion, sirs, that the letter of Mr. Upshur emanated from the 
same source. I cannot forbear contrasting this conduct of those in 
the Department of State with a story told of Lord Castlereigh, who 
was the Premier of England. It seems that an English officer, 
travelling on the Continent, had, for some unjust cause, been impri- 
soned, and his effects confiscated, which led to a long correspond- 
ence between the two governments. A final reply having been 
received, the British officer was called to hear the result. Seeing 
that the officer still looked dissatisfied. Lord Castlereigh impetu- 

4 



34 BKIQ GENERAL AliMSTKONQ. 

ously said, " What would you have us do, sir ; go to war about 
this matter ?" 

"Yes, sir," replied the officer, promptly ; " if the reparation due 
the houor of an officer of England, and indemnity for the injury, 
cannot be obtained otherwise, I demand that you should go to war." 
" You are right, sir," said Castlereigh ; " yoa shall have satisfac- 
tion ;" and satisfaction was obtained. 

The honorable court will perceive that these very refusals of the 
State Department to prosecute this claim further, were afterwards 
nsed in argument by the Portuguese ministers to show the weakness 
of this demand, and to induce this government to arbitrate the case. 
The State Department having abandoned this claim, and refused 
even to reply to De Castro's letter, Senator Johnson, of Louisiana, 
introduced a resolution in the Senate, calling for all the correspond- 
ence and documents relating to the claim and the causes which 
retarded its adjustment. Under that resolution, the correspondence 
contained in Document No. 14 was published in December, 1845. 
Then came to light, for the first time since these despatches had 
been received, the proceedings had at Rio de Janeiro, in 1814, 
which Mr. Kavanagh had in vain so repeatedly called for 1 

This correspondence was referred to the Committee on Foreign 
Relations of the United States Senate, which reported on the 19th 
May, 1846 [1st sess., 29th cong.], through Mr. Atherton. After 
reviewing all the facts of the case, the committee, in commenting on 
De Castro's letter, say : 

" It is destitute not only of probability, from the situation of the 
privateer in the presence of a British squadron, but it is disproved 
by all the correspondence and documents, and has not even a 
shadow of foundation. 

" In addition to this, it is a position entirely new on the part of 
the Portuguese authorities, assumed, for the first time, by them, 
nearly thirty years after the events occurred, and not only never 
assumed, but repeatedly negatived by them, when the facts were 
recent and well known." 



ARGUMENT OF SAM C. EEID, JR., ESQ. 36 

"" Adverting to the fact that no reply has been made to the letter 
•of Senor de Castro, the committee would suggest the subject for 
the consideration of the Department of State, to decide whether 
further proceedings may not be called for in the case." 

I will now call the attention of this honorable court to the report 
t)f the Committee on Naval Affairs of the United States Senate, 
made in January, 181 Y, 2d Session of the 14 th Congress. This 
committee, after a full investigation of the case, at that time, said : 

" It is th-e duty, no doubt, of all governments to extend to the 
person and property of the citizen all the protection in their power. 
It is the end of all governments to do so. It is the right of the 
citizen to make known his wrongs to his government, and it is the 
duty of the government to seek redress by such means as it may 
deem expedient. The neutrality of Portugal was grossly violated 
in the case of th-e private armed ship General Armstrong. It was 
the duty of that government to preserve her neutral character, and 
to protect the brig and all on board from any hostile attack, while 
in her port." 

"In principle, the committee can see no distinction between a 
private armed ship and a merchant ship ; nor between property 
captured and converted to the use of the captors, and property 
destroyed by a third party omitting to do its duty." 

So far back, then, as 18 H, it was the opinion of the Senate of 
the United States, and expressly charged, that England had com- 
mitted the breach of neutrality, and the responsibility of the 
government of Portugal for all loss -occasioned by such breach is 
expressly averred. 

But, sirs, let us go further back, and see how many administra- 
tions have acknowledged the justice of this claim ; because it ia 
asserted in the brief of the learned solicitor that but one adminis- 
tration ever acknowledged it. 

We find that under the administration of Mr. Madison, who 
served two terms, Mr. Monroe acknowledged it. Under the admin- 
istration of Mr, Monroe, who served two terms, Mr. Adams acknow- 



36 BRIG GENERAL ARMSTRONG. 

ledged it. Under the administration of General Jackson, Messrs, 
McLane, Dickens, and Forsyth acknowledged it ; and under the 
administration of Mr. Tyler, Mr. Webster acknowledged it. Here, 
then, for twenty-eight years, there was a continual acknowledg- 
ment, on the part of this goTernment, of the justice of this claim, 
besides two solemn admissions and declarations on the part of the 
Senate of the United States, the last which recommended its 
reference back to the Department of State, notwithstanding the 
expressed opinions of those in the Department, that " argument and 
importunity had been exhausted," and that they could see no good 
reason, under the circumstances, for renewing the claim, or for con- 
tinuing a correspondence ou the subject !" 

But suppose this claim nerer had been recognized by the govern- 
ment until General Taylor's administration, the action then taken, 
upon a clear understanding of all the facts and evidence, is conclu- 
sive. It was on those facta that General Taylor determined to 
assert the national honor — on the admissions of Portugal and Eng- 
land, and not on the representations of the claimants, that he 
determined to procure justice, cost what it would. He was a 
soldier, sirs, and knew well how to protect the honor of his 
country ! 

It must be recollected that there were a number of claims besides 
this, the justice of which Portugal had as tenaciously denied, that 
caused this determined action, and called forth the high-toned, dig- 
nified, but firm language of that great American statesman, Mr. 
John M. Clayton, iu his letter of instruction to Mr. Geo. W. Hop- 
kins, of the 20th April, 1849. I will read a few extracts ; 

"Sir : Your despatch of the 11th ult. was received here &n. the 
9th inst. I have submitted it to the President, and represented 
and explained to him the very unsatisfactory condition in which 
the claims of citizens of the United States upon the Portuguese 
government have been permitted to remain — many of them for a 
long series of years, in spite of the repeated remonstrances of the 
American government, and the untiring efforts of successive diplo- 



ARGUMENT OF SAM C. KEID, JK., ESQ. 31 

Katie representatives from this country, who have, under instruc- 
tions, again and again vainly appealed to the government of Portu- 
gal for their adjustment and liquidation. These appeals have been 
encountered by harassing delays, until at length the patience of tho 
claimants and of their government has become exhausted. Reluct- 
ant, nevertheless, to take any steps which might, by possibility, 
hazard the amicable relations of the two countries, and clinging 
still to the hope that Portugal is not obstinately bent upon closing 
her ears against a friendly power, by perpetrating the wrongs of 
which v,'e complain, the President considers his accession au auspi- 
cious moment to make one more appeal to Portugal, 

" The injustice done as, and the delay of redress, would justify 
the severest animadversion in speaking of these outrages, which of 
late seem to have increased in number and magnitude, in a direct 
proportion to the impunity with which they have been hitherto 
inflicted. In the intercourse of nations, there is, and ought to be, 
a limit to such ill-treatment, beyond which endurance ceases to be a 
virtue. That limit, it is believed, will soon have been reached, if 
Portugal shall still continue to be deaf to our just complaints. 
The responsibility must needs rest with her, if the American govern- 
ment should be forced, by a sense of duty and of self-respect, into 
ulterior measures to enforce its demand. These measures indeed 
which a dae regard to national honor may thus render necessary, 
belong, as you will understand, to the consideration of a distinct 
branch of the government. 

" The oldest case of wrong, and the most remarkable, is that of 
the privateer General Armstrong, Captain S. C. Reid, destroyed ia 
1814 by a British squadron, under the guns of the Portuguese for- 
tress which protects the harbor of Fayal, after a defence as gallant 
and memorable as any act recorded in naval annals. 

" It is revolting to contemplate such a succession of unfriendly 
acts ; exhibiting a studied course of conduct inconsistent with the 
relations which ought to subsist between Christian powers. It is 
high time that the just indignation of the American government 



38 BRIG GENERAL ARMSTKONG. 

should be aroused and directed towards the protection of the rights 
of these, our suffering citizens. 

" It is under these circumstances — here rather adverted to than 
unfolded in detail — that the President has resolved to make one 
more attempt to procure satisfaction for American claimants, and 
to assert the national honor ; and in this resolve, it will be your 
duty to convince the Portuguese government that he is in earnest, 
and will not be turned aside from his purpose. You will impress 
npon Portugal the idea that, on entering upon the duties of his high 
office, as Chief Magistrate of the United States, the President 
determined that he would assert the rights of his fellow-citizens 
npon foreign governments ; proceeding upon the principle, often 
avowed by our government, ' to make no demand not founded in 
justice, and submit to no wrong.' 

"You will make it distinctly understood that the period of pro^ 
crastination has gone by, and that immediate decision is demanded. 
Further delay will be construed into denial. It is in contemplation 
to lay before Congress the result of this final appeal, at an early 
period of the next session. Should it so happen, unfortunately, 
that a satisfactory answer be denied or withheld, until the arrival 
of the period for making the purposed communication, the subject 
will then be submitted to that body, as it shall at the time stand ;. 
and the Portuguese government may rest assured that any mea- 
sures which Congress, in their wisdom, may decide upon as due to 
our citizens and country, will be faithfully carried out by the 
Executive. 

" In presenting this view of the subject to the Portuguese 
government, as a frank avowal of a fixed determination on the part 
of the United States government, you will be most careful to repre- 
sent, at the same time, the extreme anxiety of the President to 
avoid being forced to suspend or interrupt present diplomatic rela- 
tions with Portugal ; because a recourse to that measure would» 
most probably, prove to be but the antecedent to reprisals." 

Sirs, no American can read this language without an innate thrill 



ARGUMENT OF SAM C. REID, JR., ESQ. 39 

of admiratioa 1 This acton, on the part of Mr. Clayton, was the 
result of cold, dispassioned reflection. He had thoroughly investi- 
gated the case. He had closely analyzed all its features and prin- 
ciples. He had carefully weighed all the evidence ; he had calmly 
reviewed all its legal bearing under the code of nations ; and that 
distinguished jurisconsult, Oastlereigh-like, resolved to maintain the 
honor of our country, and the rights of our citizens. He deter- 
mined that all these claims should be paid, or he would accept the 
payment of none. They had at this time agreed to pay all the 
other claims, without reference to their justice or injustice, if Mr. 
Clayton would consent to arbitrate the Armstrong claim. But 
Mr. Clayton well knew their subtle policy, and was aware of the 
secret intrigues of England. Mr. "Bulwer, the British Minister, had 
called on Mr. Clayton, and urged the acceptance of the offer made 
by Portugal ; but Mr. Clayton rebuked his impertinent interference, 
for he well knew that if he held out, that Portugal would eventu- 
ally pay this claim with the rest. 

We have seen, by the correspondence of Messrs. Hopkins and 
Clay with Count Tojal, that the latter unwittingly disclosed the 
fact of England's acknowledged admissions of her guilt, by the 
apology of Lord Bathhurst and the indemnity of Lord Castlereigh, 
which was pretended by De Castro to have been an act of magna- 
nimity, instead of the result of a peremptory demand. No other 
proof than this was necessary to establish the liability of Portugal. 
To this day, Portugal has never abandoned the claim against Eng- 
land for the loss of this vessel. When asked, by Mr. Hopkins, if it 
was ever abandoned, and when ? Count Tojal remains silent ! And 
I defy any one to show that England has ever, officially or in any 
manner, denied that Lloyd had not first violated the neutrality of 
the port of Fayal. No, sirs ; Lord Bathhurst and Lord Castle- 
reigh were both well aware of the fact, and the only evidence to 
the contrary to be found, in all the record, is Lloyd's letter to 
Governor Bibeiro, steeped in damning falsehoods ; as for his poor 
tool, Lieutenant Fausset, it is but charity to pass over. But if 



40 BRIG GENEKAL ARMSTRONG. 

Lieutenant Fausset was right, where, then, I demand, was Eng- 
land's official charge against Captain Reid ? 

Mr. Clay makes a demand for the correspondence between Por- 
tugal and England which led to the apology and indemnification 
from Great Britain : Count Tojal again silently refuses to comply 1 
What does Mr. Clay say on this occasion ? In his letter of 2d 
November, 1849 [on p. 46, Doc. 53], he remarks : 

" Your Excellency cannot mean to assert the deposition of Lieut. 
Fausset to he an information obtained and procured by the act of 
insisting upon this daim by the United States government ; nor that 
the Portuguese government was not in possession of it a very short 
time after the occurrence to which it relates ; any such idea 13 
negatived by the date which the instrument bears — the 2tth Sept., 
1814 ; and it is fair to presume that it was before both the Portu- 
guese and the British governments, when the former demanded, and 
the latter accorded satisfaction for the outrage. 

" Your Excellency has not thought proper to state either by 
whom the informations have been furnished, or in what they consist, 
by means of which it i^ now sought to invalidate all the testimony 
worthy of credit upon the claim, and to stultify the conduct of the 
then sovereign of Portugal. Supposing these informations, if any 
such e^ist, may be found in the correspondence which has taken 
place betw^een the governments of Portugal and that of Great 
Britain, and anxious to give them all the consideration which they 
may merit, and which may be necessary to the most perfect under- 
standing of the whole subject, the undersigned siibmits a request for 
copies of all the papers presented by her majesty^ s government, contain- 
ing the diplomatic correspondence, and evidence which led to the conces- 
sion of an apology and indemnification from Great Britain. If this 
he refused, the government of the United States will be justified in 
believing that, in the prosecution of that branch of the demand 
against the British government, it was maintained and proved by her 
majesty'' s government that Commander Lloyd was the aggressor, and 
the American claimants the injured parties." 



ARGUMENT OF SAM C. EEID, JE., ESQ. 41 

Now, I ask, why was not tWs correspondence produced, and the 
negotiation conducted on fair and open, honest terms ? Because, it 
would have proved that Lloyd was not believed by his own govern- 
ment, and it would have denounced him a liar, which the statement 
of Governor Ribeiro had already shown ! To shield the falsehood, 
her Britannic majesty sends an official letter to her faithful majesty, 
stating that, the assertions in regard to such censures were entirely des- 
titute of foundation ! Not that he did not violate the neutrality of 
the port — no official letter on that point — but that he was not cen- 
sured. The gross misrepresentations on this point, and the miserable 
decrepitude of truth on the part of both England and Portugal, are 
such, that I leave it for this honorable court to decide if either are 
entitled to belief ? 

It must be admitted that it was a most one-sided negotiation — 
they having had the benefit of all our correspondence, even to the 
private letters between the Department and the claimants, while we 
were kept entirely in the dark ! 

On the peremptory demand being asserted to Portugal, she pro- 
posed to pay all the other claims, if the United States would agree 
to arbitrate the General Armstrong claim. General Taylor 
peremptorily refused, in accordance with his previous fixed determi- 
nation " to assert the rights of his fellow-citizens, and to make no 
demand not founded in justice, and to submit to no wrong." 

Final instructions were then sent by Mr. Clayton to Mr. Clay, in 
the dispatch of the 8th March, 1850 [p. 68, doc. 53], which says : 
" In regard to a reference of our claims to an arbiter, which has 
been indicated, the President has directed me to say that no such 
course will, under the circumstanas, receive his sanction, and this for 
reasons too obvious to need enumeration. 

" The ship-of-war sent to convey these instructions and to receive 
the answer to them, will await a reasonable time for the answer, 
and if, by or within that period, satisfaction is not given, and due 
provision made for the payment of our citizens, you are ordered to 
demand your passports and return to the United States." 



42 BKIG GENERAL ARMSTRONG. 

Mr. Clayton has been charged with bullying Portugal, and 
threatening to declare war against her, if she did not pay these 
claims. No such accusatious can for a momeat be sustained. In 
his letter to Mr. Hopkins he expressly states, "These measures, 
indeed, which a due regard to national honor may thus render 
necessary, belong, as you will understand, to the consideration of a 
distinct branch of the government J' 

Again, he says, "It is in contemplation to lay before Congress the 
result of this final appeal at an early period of the next session." The 
whole matter, then, was to be submitted to the Congress of the 
United States for its decision, and this charge of threatening Por- 
tugal with war was but the reiteration of the English press, which 
went so far, even, as to substitute England for Portugal in meeting 
the responsibility of rejecting this claim at all hazards. The United 
States was taunted with the injustice and want of magnanimity dis- 
played in the demonstration of a naval force to demand the payment 
of this claim. And yet this magnanimous England, and her Ameri- 
can adherents, were well aware of the fact that the waves had 
hardly covered over the track of her own national ships from the 
shores of helpless Greece, whom she forced to pay a trumped-up 
demand, without a shadow of right or justification 1 Portugal, thus 
encouraged and sustained by England, refused to comply with the 
demand, and Mr. Clay took his passports and left in the war-steamer 
Mississippi for France. 

On. the 9th July, 1850, a great calamity befell the nation, and the 
claimants, by the death of General Taylor. Mr. Fillmore became 
President of the United States. Mr. Webster succeeded Mr. 
Clayton as Secretary of State, and three days afterwards, about the 
23d July, he agreed with Mr. Figaniere to arbitrate this claim ! 

I contend, here, that there was no power that had a right to 
reverse the decision of General Taylor, who had prepared to submit 
the case to Congress for its decision, any more than it was contended 
we could not reverse the decision, or refuse to obey the decree of 
Louis Napoleon I 



AKGUMENT OF SAM C. EEID, JR., ESQ. 43 

The fiat of this great republip had gone forth to the world. This 
government had plighted its national faith and honor, and solemnly 
declared that it would never consent to arbitrate this claim. No 
power on earth had the right or the authority to reverse this deci- 
sion but Congress. It had passed out of the functions of the State 
Department, and the case stood appealed to the Congress of the 
United States. No succeeding administration had any control or 
jurisdiction over the case. Such was the unanimous opinion of the 
Committee on Foreign Affairs of the United States House of 
Representatives, at the first session of the 33d congress, composed 
at that time of some of the most distinguished jurists of the coun- 
try. Such was the opinion of the celebrated attorney-general, 
William Wirt, in the cases of Potlinger and Spense [see Opinions 
of the Attorneys-General of the United States, vol. 1, p. 486]. 
Thus was the honor and faith of the government repudiated for the 
first time, and this great and glorious Republic made to stand in 
shame, before the eyes of the nations of the world, in the humiliating 
and degrading position of having asserted the national honor, and 
afterwards sullied it by a retraction ! 

But, may it please this honorable Court, while I do not question 
the reason or the motive of Mr. Webster in agreeing to submit this 
case to arbitration, I do not hesitate to say that I believe he com- 
mitted a great error of judgment. His was certainly not an act of 
" intrinsical indiference," " without which,'' says Puffendorf, " all the 
morality of human action is inevitaily overthroion." The reason why 
Mr. Webster agreed to refer this claim to arbitration was that he 
felt perfectly confident that Louis Napoleon, as President of the 
Republic of France, would decide in our favor. I know this, because 
he told me that no man could decide the case against us. 

Mr. Webster may be censured for this act, but I cast no reflec- 
tions on his character. Daniel Webster has erected for himself a 
superstructure of grandeur, over which the fixed meridian sun of 
his genius will shine resplendent for ever, and on which, no act or 
error of his past life, can for a moment cast the slightest shadow I 



44 BRIG GENERAX ARMSTRONG. 

I shall now proceed to evidence to your honors under what cir- 
camstances the government of the United States accepted the 
proposition of Portugal to arbitrate this claim, and the nature of 
that proposition, which Mr. Clay had not only been instructed 
peremptorily to reject, but to enforce the payment of this particular 
claim. 

In the letter of Count Tojal to Mr. Clay, of the 6th July, 1850, 
replying to the final demand of this government, is presented this 
extraordinary proposition : 

" The government of her majesty, animated with the same desire 
which the government of the United States professes, to maintain, 
without interruption, relations of good harmony and intelligence 
between the two countries, yields to the force of circumstances, and, 
without again rexrerting to the justice or injustice of the claims presented 
by the government of the U. S., and only pro bono pads, offers to 
pay the said mentioned claims, amounting to $91,721, according to 
Mr. Clay's account, with the only exception of that of the privateer 
General Armstrong. 

" In respect to this claim, the undersigned cannot deviate from 
the proposal heretofore made to Mr. Clay, that of so important a 
claim being submitted to the decision of a third power, &c." 

It is true, that, at first blush, no exceptions can be taken to the 
diplomatic language here used, as well as to the manner in which 
the proposition is put. But on a closer examination, the infamy 
concealed under it is plain and palpable. And, sirs, what is the 
induction ? Why, it is this, " if you will surrender the chastity of 
your honor, by agreeing to arbitrate the "General Armstrong" 
case, we will pay all the other claims, loithout reference to their jus- 
tice or injustice / " This is no morbid or forced construction, because, 
antecedent to this proposition, the wily minister makes this decla- 
ration : 

" Her majesty's government, far from denying justice to the 
government of the United States, always proposed, in the respective 
answer to each claim, to refer tltem to arbitrators, as the most decor- 



AEQUMEKT OF SAM C- EElD, JR., ESQ. 45 

ous and adequate mode to resolce these claims." The motive for 
resisting this claim, and which induced Portugal to make this propo- 
sition, is distinctly declared in the following sentence : 

" Her majesty's government, besides the arguments contained in 
the notes formally addressed to the goTernment of the United 
States, finds its judgment, and the manner of weighing the question of 
the privateer General Armstrong^ strengthened with the opinion of 
her Britanic majesty's government^ lohich has always deemed this claim 
of the United States unjust ! " 

In reply to this proposition, Mr. Clay, in his letter of the 7th 
July, 1850, states, "that the instructions of his government do not 
allow him to entertain any proposition which has not for its object 
the adjustment aiid final settlement of all the said claims without 
exception ; he therefore declines to accede to the proposition of his 
excellency as above stated, to pay all the other claims except that 
of the General Armstrong, and to refer it to arbitration." 

Again, in his final letter of the 11th July, 1850, demanding his 
passports, Mr. Clay says : " This proposition does not admit the 
justice of any single one of the claims to which it refers, but merely 
states, as above quoted, that the government of her most faithful 
majesty is willing, /or the sake of peace, impelled by the force of cir- 
cumstances, and vnthout considering their justice or injustice, to pay 
some of them." This language shows that Mr. Clay well under- 
stood the infamy contained in the proposition, and that the terms 
for the sake of peace concealed the offer of the purchase-money for the 
dishonor of our government ! 

I wish bere to substantiate the fixed and determined resolution 
on the part of General* Taylor, as made known to the Portuguese 
government, under no circumstances to consent to arbitrate this 
claim. While the negotiation was being conducted at Lisbon, Mr. 
Figaniere, the minister resident at Washington, was duly advised 
of all the proceedings, and had, in the meantime, opened a corres- 
pondence with Mr. Clayton. In reply to a letter of Mr. Figaniere, 
urging a reference of this case to a third power, Mr. Clayton, on 



46 BEIO GENERAL ARMSTKONG. 

the 30th April, 1850 [p. 91, doc. 53], Baid : "The undersigned, in 
conclusion, is compelled to add that, should the Portuguese govern- 
ment persevere in the refusal to adjust and settle what are believed 
to be the incontrovertible claims of American citizens upon that 
governmeut, the only alternative left to the President will be imme- 
diately resorted to — the submission of the whole subject to the decision 
of the Congress of the United States, whose final determination as to 
the mode of adjustment will have all its appropriate and legitimate 
influence upon the course of the executive." 

Again, on the 19th June, 1850 [p. 186, doc. 53], in reply to 
Mr. Figaniere's trumped-up and obsolete reclamations on this 
government, as a set-oflf against our demands (and which shows the 
weakness of his defence), Mr. Clayton says: "In conclusion, sir, 
I beg leave to repeat to you the assurance contained in my note of 
the 30th May last, ' that the just claims of the citizens of this coun- 
try upon Portugal will lose none of the merit which characterizes 
them, nor any portion of that protection which this government has 
determined to extend to the claimants, by the resuscitation of such 
unfounded pretensions." 

In a private letter [marked F] from Mr. Clayton to myself, dated 
June 25, 1852, he says : " General Taylor refused, to the last moment 
of his life, to submit the Armstrong claim to arbitration^ 

Now, if the honorable court please, I shall demonstrate that in 
consenting to submit this claim to arbitration, the government 
accepted and received a bonus in consideration therefor. The 
official letter of Mr. Webster to Mr. Figaniere, of the 5th Sept., 
1850 [p. 112, Doc. 53], expressly declares it. He says: "The 
President instructs me now to say that, sincerely wishing to pre- 
serve relations of amity with Portugal, and to bring pending ques- 
tions to an immediate close, t/i^ government of the United States 
accepts Count TojaVs ' offer,' in behalf of his government, to pay the 
several claims, as stated in Mr. Clay's note ; and the proposition made 
by the same authority, to refer the case of the General Armstrong to 
arbitration.^' The first article of the Convention, afterwards made, 



ARGUMENT OF SAM C. REID, JR., ESQ. 47 

also expresses it. It states that the Queen of Portugal " has 
assented to pay to the government of the United States a sum equi- 
valent to the indemnities claimed for several American citizens (with 
the exception of that mentioned in the fourth article), and which 
sum the government of the United States undertakes to receive in full 
satisfaction of said claims, except as aforesaid, and to distribute the 
same among the claimants." 

We have seen that Portugal not only objected to this claim, on 
pretended principles of law, but to all the claims, on the same 
grounds of inadmissibility, which she likewise urged the United 
States to arbitrate. All these claims were apparently equally 
objectionable to her, and as firmly resisted as the Armstrong ca.se. 
Then, why was it that the offer was not made to pay this claim and 
refer the others to arbitration, as she had yielded to the force of cir- 
cumstances, and, for the sake of peace, was willing to fay all the other 
claims, just or unjust ? Because, sirs, England had forbidden her, 
and, as a mere dependency of Great Britain, she did not dare to 
disobey her. In the language of Count Tojal, who cringingly sup- 
plicates Mr. Clay to separate this from the other claims, on the 
infantile plea and mortifying admission that "The subsisting rela- 
tions between her most faithful Majesty, and that of her Britannic 
Majesty, oblige him to communiaite to the British government all that 
had taken place .'" [See p. 11, Doc. 53.] What does this reveal? 
It reveals that England had instructed Portugal to pay all the 
other claims, provided we would agree to arbitrate this one (she 
well knowing that no power in Europe would decide in our favor), 
and not to pay any of the other claims, only on the condition, and 
in consideration, that we would arbitrate the Armstrong claim ! 
Now, sirs, what was the offer, on the part of Count Tojal, that the 
President accepted ? Was it a simple offer to pay all the other 
claims, without reference to the Armstrong claim ; or was it a con- 
junctive proposition ? If it was not a conditional offer, why did 
Mr. Clay refuse to accept it before he left Lisbon ? Because, he 
tells you, his instructions did not allow him to entertain any proposi- 



48 BRIG GENERAL ARMSTRONG. 

lion which had not for its object the adjustment and final settlement 
of all the claims, without exception ! Will it be pretended for a 
moment that it was an unconditional offer to pay all the other 
claims, whether we consented to arbitrate this claim or not? 
Would Portugal ever have consented to pay those claims, if we had 
refused to arbitrate this one ? No, sirs, never — and the proof is 
irrefragable that, in consenting to arbitrate it, we received a bonus 
in the payment of the other claims. On this point, alone, I contend 
^ that the' government is responsible to the claimants. 

We next charge that the agreement to arbitrate this claim was 
made and entered into without our knowledge or consent. It is 
shown that, on the 5th day of September, 1850 (the very day I 
wrote from New Orleans to Mr. Webster), the President's accept- 
ance of Count Tojal's proposition was officially communicated to 
Mr. Figauiere ; and about the 23cZ of July, 1850, the proposition 
had been verbally accepted. What is Mr. Clayton's testimony on 
this point ? In the debate on this bill in the Senate, January 26th, 
1855, Mr. Clayton said : 

*' Well, sir, at this crisis, when all the other claims were about to 
be paid — and I verily believe this was also about to be paid — the 
President died. Within three days after my successor went into 
ofifice, he agreed to refer the claim to the Prince Louis Napoleon. 
I know that, because he called upon me, and, in the course of the 
conversation, notified me that he had made that arrangement with 
Mr. Figaniere, the Portuguese minister. The proposition to refer 
had been made to me repeatedly. It seemed as if they were willing 
I should choose the arbiter. They oifered to refer it to three civi- 
lians, or to one civilian, or to any crowned head in Europe. I 
refused. I thought the circumstances of the case so clear against 
that government, and her conduct so atrocious, that there ought to 
be no reference of a claim which was so clearly right." 

Again, he said : " In this case, the claim was referred to the 
arbitration without the consent, and without the knowledge of the 
claimant. He had not the slightest information that such a thing 



ARGUMENT OF SAM C. REID, JR., ESQ. 49 

was in progress. The papers show exactly the opposite of what the 
honorable Senator [Mr. Fessenden] contended for in this respect. 
Within three days after the matter came into the hands of my suc- 
cessor in the office of Secretary of State, he agreed to refer it. I 
k^ow this, of my own knowledge. At that very moment, the 
claimant was confidently expecting that his claim would be paid. 
Other claims had been given up, and he had every reason to sup- 
pose that this, also, would be paid. The claimant wrote to the 
Department for information, and received the answer which was 
read by my friend from Mississippi [Governor Brown], that the 
claim had been referred. Afterwards, the treaty was made, in pur- 
suance of an arrangement, long before agreed on, between Portugal 
and this government ; and the reference was confirmed." 

And again, Mr. Clayton said : " It will be remembered that 
President Taylor died on the 9th July, 1850. On the 18th or 20th 
July, Mr. Webster became Secretary of State. About the 23d 
July, the Portuguese minister and the Secretary of State agreed to 
refer the Armstrong case to the arbitration of Louis Napoleon, on 
the ground, as I was informed by Mr. Webster, that he was the 
President of a Republic. The letter that was read by the Senator 
from Mississippi (Governor Brown), to which my friend referred, 
containing the remonstrance of Captain Reid against the reference, 
was dated the 26th of Aug. Another letter (of Mr. Reid), asking 
an opportunity to be heard before the negotiation should be settled, 
was dated in September. The question had then been determined ; 
there was an end of it ; and he could not possibly do anything 
about it." 

Then, on the 23d of August, 1850, two weeks lefore the Presi- 
dent's official acceptance of the terms had been communicated to Mr. 
Figaniere, and before the rumor was made public, Mr. Clay was 
solicited by Mr. Webster to return to Lisbon, and conclude the 
bargain, which, for reasons highly honorable and worthy of Mr. 
Clay, he declined. 

But still it is asserted that we acq^uesced in this arbitration ! 

5 



50 BRIO GENERAX ARMSTRONG. 

Now, sirs, what is acquiescence ? According to Noah Webster, it 
is a quiet assent ; a silent submission, or, a submission with apparent 
content. Capt. Reid, in his letter, dated at New York, 26th August, 
' 1850, to Mr. Webster, says : " By the recent daily journals, rumora 
are rife that the claim of the General Armstrong is about to J)e 
referred to some foreign power for arbitration. This mode, at best, 
being considered somewhat problematical, we, the claimants, would 
respectfully suggest, whether or not a settlement by treaty, or con- 
vention, may not in your opinion be preferable, as being most likely 
to enable us to obtain our demands without the risk of a failure ?" 
Mr. Webster replies to this letter, on the 29th August, 1850, that, 
" after due consideration, it has been deemed proper to accept the 
offer of the Portuguese government to pay all our claims, excepting 
that of the Armstrong, &c." This dm consideration took place 
more than a month before Capt. Reid had ever heard it! And did 
Mr. Webster, at that time, write to Capt. Reid, or any of the 
claimants, to consult them or advise them on the subject ? No, 
sirs, they were not taken into consideration. I wrote afterwards, 
from New Orleans, on the 5th September, 1850, requesting the 
Department " to make no final arrangement in this case," and 
requesting it "to be left open until I could have a conference," and 
hoping that " no steps would be taken which would compromise the 
rights of the claimants until I could see Mr. Webster." In reply, 
I was informed that the offer had already been accepted, and the fact 
announced to the Portuguese minister ! Can this be tortured into 
a quiet assent, or a silent submission 7 But for a further explanation 
of these terms, I refer to Count Tojal. Sirs, there can be no acqui- 
escence, no consent after the committal of an act of wrong, of injury, 
or violence. The victim of innocence cannot consent, cannot acqui- 
esce, after the perpetration of an act of violence. The householder 
cannot consent after the crime of arson has been committed. What 
folly, then, to talk of an acquiescence before an act is even known 
to be in contemplation, or after its consummation, without a know- 
ledge of its existence •, the very essence of consent is the yielding 



ARGUMENT OF SAM C. EEID. JE., ESQ. 51 

of the mind to a proposition laid bare to it, and there can be no 
consent where the will is not consulted. 

I consider that the Hon. Mr. Marcy, in his letter to Hon. J. M. 
Mason, Chairman of the Committee on Foreign Relations of the 
TJ. S. Senate, dated 11th Feb., 1854, lays down the true doctrine 
governing this principle. He says : " I cannot countenance the 
principle that, where this government is called on by a citizen of the 
United States to interpose for the purpose of recovering claims 
against any other government, proceeds in good faith for that purpose, 
and fails in its object, or obtains what may be regarded as an inade- 
quate indemnity, it places itself in a situation to be called on to pay 
the claims, or to satisfy the expectations of the claimants. Our 
government is but an agent in such cases, and unless it acts against 
the express or known wishes of those who have invoked its interposition, 
it does not, as I conceive, incur any liability whatever to the claim- 
ants." It is true, this letter was written at the time, with a view 
other than that of sustaining the claimants' position, but I shall turn 
it to good account. And now, I ask, were the proceedings had in 
submitting this claim to arbitration in accordance with good 
faith for that purpose ? Were they not in violation of the good 
faith of the nation pledged not to arbitrate this claim ? They most 
certainly were. And did it not "act against the express and known 
wishes of those who had invoked its interposition,'' by informino- them 
that their objections and suggestions were too late, and afterwards, 
by concluding and ratifying a treaty which had been agreed upon 
before that interposition could, by any possibility, have been invoked? 

Again, sirs, after this treaty was made, I transmitted an argu- 
ment, in behalf of the claimants, to the Department of State, 
requesting that it might be forwarded to our minister at Paris, with 
all the documents therein referred to, in order that the claimants 
might be properly heard before the arbiter. [See letters of Mr. 
Reid to Mr. Webster, marked B and C] The department refused 
the hearing, on the ground that the terms of the treaty did not 
permit of it. I then asked to be permitted to present the case to 



52 BKIG GENERAL AEMSTRONG. 

our minister at Paris, Mr. Rives, and that, through him, the claim- 
ants might be represented. And was informed by Mr. John J. 
Crittenden, on the 29th September, 1851, that "it is not competent 
for this Department to invest you with any manner of authority to 
present an argument in the case of the General Armstrong ; nor 
indeed to interfere in any way with the mode of submitting the case 
to the arbiter, provided for by the 3d article of the conyention." 
[See letter marked D.] Did not the government here again act 
most palpably " against the express and known wishes of those who 
had invoked its interposition .?" I hold, therefore, that the doctrine 
of Mr. Marcy is perfectly sound on this point. 

I wish, here, to show a strange inconsistency on the part of the 
opposers of this claim. While it is contended, on the most weak 
and shallow testimony, that England did not violate the neutrality 
of Portugal, and that we did acquiesce to the arbitration, they 
attempt to evade the responsibility of Portugal, and the government 
of the United States, based on impregnable evidence, because of its 
insuflaciency 1 But I shall leave the honorable court to det,ermine 
on the weight of this evidence, with the single remark, that had it 
been laid before the Senate, the treaty would never have been 

ratified. 

Let us now, for a moment, take into consideration this treaty, or 
cottveution, by which the rights of the claimants were bartered 
away. Upon examination, it will be found that it was drawn up 
without a strict regard to the protection of the rights of the 
claimants, and that it was made in violation of all principles 
of justice, and of all rules governing arbitration. The great 
feature containing the very essence of arbitration, the hearing 
and determining upon the law and the facts, was entirely omitted 
and unprovided for. [See Civil Code of La., title 19, p. 461.] 
By the third article of the treaty, it will be seen that the evidence 
of the case is confined and limited to the "correspondence" which 
has passed between the two governments and their respective repre- 
sentatives, and that, under that article, the claimants were not only 



ARGUMENT OF SAMUEL 0. EEID, JE., ESQ. 53 

denied a hearing, but the most important and essential documentB, 
consisting of Captain Reid's protest, Consul Dabney's letter, and 
all the correspondence of " 1814," were entirely excluded and 
omitted. To establish this fact, I refer the honorable court to the 
letter of Mr. Webster to Mr. Hadduck, charge at Lisbon, dated 
March 20th, 1851 [p. 85, Doc. 53], in which he says : " I have just 
had a conference with Mr. De Figaniere, and it has resulted in my 
determining to yield to his ivishes, that the papers in the case of the 
General Armstrong may be transmitted to your charge," &c. 
"When the consent of the arbiter, whichsoever of the two it may 
be, shall have been obtained, you will proceed to carry into execu- 
tion the stipulation of the third article of the convention ; viz., to 
compare and authenticate, jointly with the Portuguese government, 
the copies therein specified. You will understand, of course, that these 
copies are ' limited^ to such communications as have passed between 
the American Legation and the Portuguese government at Lisbon, 
and between this Department and the Portuguese Legation in 
Washington," &c. It will be remembered, that on the 7th July, 
1851, I solicited the Department to forward my argument, and the 
documents therein referred to, to our minister at the court of France, 
This communication caused the Department to examine and to inquire 
into the instructions just read, as to what documents had been 
stipulated upon to be submitted to the arbiter. It Was then found 
that the whole of the correspondence of " 1814" had been omitted, 
which caused the following letter to be written expressly by the De- 
partment to Mr. Hadduck, dated 12th July, 1851 [p. 86, Doc. 53], 
for the purpose of correcting this great oversight. " To provide, how- 
ever, against the omission of any important part of the earlier portion of 
the correspondence, I mean that which passed in 1814 and 1815, in 
Rio Janeiro, where the court of Portugal, at that time, resided, and 
which it could not have been intended to exclude, I transmit to you 
herewith a printed copy of the correspondence, as communicated to 
Congress, on the 15th December, 1845." Well, sirs, just one month 
and three days before Mr. Webster signed that letter, the protocol 



54 BKIG GENERAL AKMSTKONQ. 

had been concluded at Lisbon, and sent off to Paris, without inclnd 
ing this evidence, and here is the proof of it. Mr. Hadduck, in his 
letter, dated Lisbon, July llth, 1851, to Mr. Webster, says : " Sir, 
I have the honor to inform you that, on the 9th of June, I met her 
majesty's Minister of State and Secretary of Foreign Affairs, at the 
Foreign Office, for conference on the subject of the protocol." * * * 
" With these slight alterations, the instrument was signed ttnd sealed 
by us on the day of the conference. I have informed our minister at 
Paris of these proceedings." Now, on an examination of the pro- 
tocol [marked No. 1], it will be seen that no particular correspon- 
dence, or evidence, is specified therein, to be laid before the arbiter, 
while it contains a clause to " bind the respective governments, and 
all parties interested, to submit to the judgment and decision of said 
arbiter." This very clause, or stipulation, according to the doctrine 
of Mr. Marcy, then, creates, of itself, a responsibility on the part of 
this government to the claimants, in case the claim was wrongfully 
or improperly submitted. And the refusal, on the part of this 
government, to allow the claimants to be heard through their 
minister, by a written argument, being in direct conflict with the 
law governing arbitration, attaches and fixes on this government 
the duty and obligation to iudemuify the claimants, which cannot 
be overthrown. 

But may it please the honorable court, my province has simply 
been to argue this case upon the facts, and I shall leave it for my 
learned and distinguished compeers, who will follow me, to sustain 
the principles of this cause upon legal authorities. It is sufficient 
for me to say, that the most distinguished Senators of the last ses- 
sion of Congress, the most eminent statesmen and jurisconsults, 
Messrs. Cass, Clayton, Bell, Brown, Bayard, Dodge of Iowa, 
Douglas, Foot, Houston, Jones of Iowa, Reid, Husk, Seward, 
Thompson of New Jersey, Weller, Wright, and others, supported 
and advocated this claim, on the principles I have maintained before 
your honors, it having passed the Senate to a third reading by a 
majority of five. And 1 refer this honorable court to the powerful 



AEGUMENT OF SAM C. EEID, JR., ESQ. 55 

and conclusive argument, on this point, of the Honorable Senator 
Bayard. 

Senator Dawson, of Georgia, who took the opposite side of this 
question, thought otherwise. This great publicist and learned com- 
mentator on international law, thought we should have looked to 
England at the time for indemnification, and that we had no right 
to call on Portugal ! This advocate of Louis Napoleon and his^'wsf 
decree was of opinion that the claimants had no right to be heard, 
and that his imperial majesty, Louis Napoleon, was not to be expected 
to condescend to listen to the argument of a humble citizen of the 
United States I The learned senator, on reflection, deemed it pru- 
dent to suppress this portion of his speech. But, sirs, the Hon. Jas. 
A. Bayard, who had denounced this award as atrocious, a senator 
distinguished for his profound ability, demanded to know from the 
Georgia senator what panoply and majesty covered this high poten- 
tate of France that he could not condescend to be instructed by an 
argument ? He was told, sirs, that if Chief-Justice Marshall could 
be instructed, and the Supreme Court of the United States have 
changed their opinions by condescending to hear argument of coun- 
sel, there was nothing in the character of this Emperor of France 
that prevented him from being instructed as well. 

The honorable ex-senator from North Carolina, Mr. Badger, who 
was opposed to this claim, had the temerity to rebuke Mr. Bayard 
for denouncing the award, because it was charging Louis Napoleon 
with being either stupid or corrupt. The learned ex-senator, in 
arguing a cause before this honorable court, the other day, admitted 
that senators and congressmen frequently made speeches for Bun- 
comb and this may have been a huncomh remark of his. Is it not 
strange, sirs, how circumstances act upon the human will and warp 
the judgment of the human mind ? Is it not remarkable that a 
senator upon the floor should not be able to see and understand a 
clear principle of law and equity, which, as difeed attorney before a 
court he urges, not only with a conviction of truth, and declares his 
solemn belief, but tells you, to use his own language, that here he 



56 BEIG GENERAL ARMSTEONG. 

has " no dark corners ia a district to dread to prevent hiin from 
doing justice !" What a melancholy and humiliating admission to 
have made, and how repugnant to the feelings which should actuate 
senators, who are the judges of the realm and the great conserva- 
tors of the rights of the people of this Union ! 

And now, sirs, let us examine the finding of this award of Louis 
Napoleon. Supposing it to have been made by the distinguished 
civilians of France, they certainly cannot plead ignorance of the 
rules of arbitration. Have they done their duty even as marked 
out under the lame articles of the convention and protocol ? Where 
is their decision on the public law in the case ? Not one word upon 
the point submitted. Where is there a decision on any single fact 
stated ? Why, sirs, the case is decided upon an entire different 
theory from that raised either by Portugal or the United States. 
The award says, " considering that if it be clear that, on the night 
of the 26th September, some English long-boats, commanded by 
Lieut. Robert Fausset, of the British navy, approached the Ameri- 
can brig, the General Armstrong, it is not certain that the men who 
manned the boats aforesaid, were provided with arms and ammunition. 
That it is evident, in fact, from the documents which have been exhib- 
ited, that the aforesaid long-boats, having approached the American 
brig, the crew of the latter, after having hailed them and summoned 
them to be off, immediately fired upon them, and that some men 
were killed on board the English boats, and others wounded — some 
of whom mortally — without any attempt having been made on the 
part of the crew of the boats to repel at once force by force!" 

This statement is entirely novel, and wholly at variance with the 
position assumed both by England and Portugal, who only con- 
tended that but one boat was unarmed, while the award considers it 
uncertain that any of the boats were provided with arms and ammu- 
nition/ Why, sirs, they were not even guided by Lieutenant 
Fausset's deposition. Can this decision, then, be said to be based 
on any principle of law, upon the evidence placed before this court, 
or upon any reason or common sense ? I am confident it cannot, 



AEGUMENT OF SAM C. REID, JR., ESQ. 57 

and there is not a court on the face of the earth that would decide 
that this award is just. It is conclusive, therefore, that the cor- 
respondence of " 1814" never was before the arbiter. For therein 
it is seen that, instead of all the boats being unarmed, and no 
attempt being made to repel force by force, the fire was simul- 
taneous on the part of both, and that the first-lieutenant of the 
American brig was wounded, and one man killed. Then, when they 
found the evidence to be imperfect, why did they not act like just 
men, and call for further testimony ? Because, sirs, justice was not 
to be expected of a man who had become a perjured President, by 
violating his oath and trampling on the constitution of his country ! 
What Gunther writes to Ligurinus may well be applied here : 

" When falsehood bare and undisguis'd appears, 
It never can deceive ; but when it wears 
The garb of truth, it cheats the heedless ears !" 

It became the duty, then, of this government, under the protest 
of the claimants, to set aside this award, if it did not wish to incur 
responsibility to the claimants ; but, having confirmed the award, 
she confirmed her responsibility, and there is no escape from this 
conclusion. But if this award now precludes the claimants by its 
decision, as has been contended, then why, I ask, did not the deci- 
sions of Congress, the decisions of the different administrations, and 
the settled and fixed decision of President Taylor, asserted on the 
national honor, in face of the world, before preclude the reference 
to arbitration ? It was repeated to Portugal, that the " Presi- 
dent of the United States would never compromise the dignity of 
the republic, nor abandon the just rights of his fellow-citizens to 
attain any end !" Was there not a greater violation of good faith 
in reversing the decision of President Taylor, and sacrificing the 
national honor, than there would have been if the government had 
merely reversed the decision of the perjured Louis Napoleon ? 

It was asserted on the floor of the Senate, in opposition to this 
claim, that it would be a dangerous precedent to establish, to make 



58 BEIG GENERAL AEM8TE0NG. 

/ 

the government responsible to its citizens for any act of its officers 
in the conduct of a national affair, which compromised their rights, 
and that no sucli act can be binding on the governntent. Wliy, sirs, 
do we not see the government daily holding its citizens responsible 
for their acts, and are we, in this free and enlightened Republic, to 
bo told, in the language of tyranny and oppression, that. " the king 
can do no wrong !" that there is no responsibility resting on this 
government towards its citizens ? Such a doctrine strikes at the 
very sub-stratum of the compact on which the confederacy of this 
Union was formed. We know, that, in forming the confederacy, 
each State gave up a portion of its rights and sovereignty to the 
general government, in consideration of its obligation and responsi- 
bility to protect, maintain, secure, and defend the rights of its citi- 
zens. I find, sirs, in the proceedings of the Congress of the Confe- 
deration, an address to the several States, prepared by Mr. Madison, 
Mr. Ellsworth, and Mr. Hamilton, adopted 26th April, 1183, 
holding this language : 

Let it be remembered, finally, that it has ever been the pride and 
the boast of America that the rights for which she contended were 
the rights of human nature. By the blessings of the author of these 
rights on the means exerted for their defence, they have prevailed 
against all opposition, and form the basis of thirteen independent 
States. No instance has heretofore occurred, nor can any instance 
be expected hereafter to occur, in which the unadulterated forms of 
republican government can pretend to so fair an opportunity of 
justifying themselves by their fruits. In this view, the citizens of 
the United States are responsible for the greatest trust ever confided 
to a political society. If justice, good faith, honor, gratitude, and all 
the other qualities tohich ennoble the character of a nation, and fulfill 
the ends of government, be the fruits of our establishments, the cause 
of liberty will acquire a dignity and lustre which it has never yet 
enjoyed, and an example will be set which cannot but have the most 
favorable influence on the rights of mankind. If, on the other side, 
our government shall be unfortunately blotted with the reverse of 



% 

ARGUMENT OF SAM 0. EEID, JK., ESQ. 59 

these cardinal and essential virtues, the great cause which we have 
engaged to vindicate will be dishonored and betrayed, the last and 
fairest experiment iu favor of the rights of human nature will be 
turned against them, and their patrons and friends exposed to be 
insulted and silenced by the votaries of tyranny and usurpation." 
What a commentary is this upon the act of the government in deny- 
ing to the claimants the rights of human nature ? I appeal to this 
honorable court, and ask, whether "justice, good faith, honor, gra- 
titude, and all the other qualities which ennoble the character of a 
nation," do not demand that the claimants should be indemnified by 
their government ? But if there be no responsibility in this case, 
upon what principle, then, is the forced construction of an act of a 
citizen, construed into an acquiescence and a responsibility to release 
this government ? The illustrious General Washington said, in his 
farewell address, " It is indeed little else than a name, where the 
government is too feeble to withstand the enterprises of faction, to 
confine each member of the society within the limits prescribed by the 
laws, and to maintain all in the secure and tranquil enjoyment of the 
rights ofjJersons and property.'^ What a shadow, what a thing of 
air becomes this government, then, when all these cardinal and 
essential virtues become reversed, exposing the claimants to be 
insulted and silenced by the votaries of tyranny and usurpation I 

Sirs, under the Constitution, Congress alone has the power to 
declare war, and make rules concerning captures oniaud and water. 
We have made our own code of the law of nations in this regard — 
and what is the doctrine as laid down by General Washington ? In 
the case of the British ship Grange, captured by the French frigate 
L' Ambuscade, within the capes of the Delaware, in 1793, the Pre- 
sident then said : " Rather than employ force for the restoration of 
certain vessels which I deem the United States bound to restore, I 
thought it more advisable to satisfy the parties by avowing it to be 
my opinion that, if restitution was not made, it would be incumbent 
on the United States to make compensation." It will not be 
denied, but that this decree of Louis Napoleou is cruelly disgraceful 



60 BEIG GENERAL ARMSTRONG. 

and unjust. And what is its effect ? The government of the 
United States is placed in the mortifying and humiliating position 
of having prosecuted and supported by its honor an unjust claim for 
thirty-five years, founded only on falsehood. This it is made to 
acknowledge by receding from the high ground it had taken, and 
consenting to submit the honor of the country and the rights of the 
claimants to arbitration. It stamps Captain Reid and his officers, 
and Mr. Dabney, the consul, as convicted perjurers, and elevates 
an act of infamy on the part of England to the purity of truth. 
And yet it is said, this decree is final, and the record must 
stand 1 

Sirs, was this case submitted to the people of this Union to-day, 
their unanimous voices would denounce this decree, and declare 
justice to the claimants. In this spirit I ask you to refer to the 
very preamble of the Constitution, which in itself constitutes an 
appeal to your equity, and covers the history of this case. That 
preamble guarantees and secures justice, that justice which we seek. 
That preamble embodies and contains the very essence of the Con- 
stitution of the United States, " Establish Justice," not law, which 
is but a poor substitute. To insure domestic tranquillity, and in 
providing for it the common defence, thereby promoting the general 
welfare, and securing the blessings of liberty to those who perilled 
their lives to establish it — not for themselves, but for posterity, we 
ask Justice at your hands. 

May it please this honorable court, my task is done. You have 
before you the full history of a case, wherein the claunants have 
been for nearly half a century gradually sinking under wrong and 
injustice, until life's hope expiring, many of them have died with it 
unrequited but by the grave. It was not considered by them, 
whether they spilt one drop of blood, or their whole heart's blood, 
in defending the honor of their country, and should it now be con- 
sidered by this honorable court, whether a precedent can be found 
to guide i on, while you have the Constitution and the eternal truth 
to sustain you in decreeing Justice ? 



AEGUMENT OF SAM C. EEID, JK., ESQ, 61 

And I now submit this cause, leaving it to this honorable court 
to determine whether the stain of infamy shall be obliterated, the 
honor of our countrymen maintained, and the truth of history vin- 
dicated, or whether the damning and atrocious record of the decree 
of Louis Napoleon shall remain in the archives of the national State 
Department, as the only monument, erected by this government, in 
gratitude and commemoration of the act of this heroic Spartan 
band. 



68 BEIG GENEKAL AKMSTEONG. 



f 

REPORT OF THE SPEECH OF P. PHILLIPS, ESQ. 

COUNSEL FOR CLAIMANTS, IN THE CASE OF THE PRIVATEER BRIG GENERAL 
ARMSTRONG. COURT OF CLAIMS, 28tH AND 29tH NOV., 1855. 

May it please your Honors — > 

After the lengthened narration of the facts and diplomatic cor- 
respondence connected with this case, to which your attention has 
already been called, I feel that I should make some apology for 
consuming still more of your time in a further investigation of the 
point, that the neutrality of the port of Fayal was invaded by the 
British fleet, under Commodore Lloyd, and that the conduct of 
Captain Reid, commanding the privateer General Armstrong, was 
not only distinguished by the highest gallantry, but justified on the 
principle of self-defence. The interest of this question cannot be 
over-estimated, whether we regard it as determining the character 
of what our people have heretofore considered one of the brightest 
pictures of the last war, or affecting the right of the claimants, as 
now presented to your Honors. My apology, if one be needed, 
must be rested upon these considerations. 

The testimony shows that the transaction occurred between eight 
and nine o'clock at night ; the brightness of the moon enabling all 
its incidents to be observed by the citizens of Fayal and a number 
of strangers, who lined the shores of that beautiful bay. [Dabuey's 
and Captain Reid's letters.] 

In the protest, drawn up on the day the transaction terminated, 
27th September, 1814, it is stated that, during the afternoon of the 



REPORT OF THE SPEECH OF P. PHILLIPS, ESQ. 63 

26th, while employed in taking on board water, and about sunset 
of that day, the British brig of war Carnation, Captain Bentham, 
appeared suddenly doubling round the northeast point of the port. 
She was immediately followed by the Rota, 38 guas, Captain 
Somerville, and the U-gun ship Plantagenet, Captain Robert Lloyd 
(commanding the squadron). They all anchored about seven o'clock, 
and, soon after, some suspicious movements on their part, indicating 
an intention to violate the neutrality of the port, induced Captain 
Reid to order his brig to be warped in shore, close under the guns 
of the castle ; that in the act of doing so, four boats approached 
his vessel, filled with armed men. Captain Reid repeatedly hailed 
them, and warned them to keep off, which they disregarding, he 
ordered his men to fire on them, which was done, and killed and 
wounded several men. The boats returned the fire, and killed one 
man and wounded the first lieutenant; they then fled to their ships, 
and prepared for a second and more formidable attack. 

The second attack, after midnight, with 12 or 14 boats, is then 
narrated, which resulted in the total defeat and partial destruction 
of the boats. The loss of the Americans being " one lieutenant and 
one seaman killed, and two lieutenants and five seamen wounded." 
The third attack, at daybreak, is then described, and after protest- 
ing against the said Lloyd for his "infamous attack," and against 
the government of Portugal for failing " to protect and defend the 
neutrality of their port," the protest is sworn to by Captain Reid, 
Frederick A. Worth, first lieutenant (brother of our late gallant 
General), Robert Johnson, third lieutenant, Benjamin Starks, sail- 
ing master, John Brosnaham, surgeon, Robert B. Allen, Captain 
of Marines, and four other prize masters of said brig. 

These statements are fully corroborated by the letter of our then 
consul, Mr. Dabuey, to the Secretary of State, 5th October, 1814 
(American State Papers Naval Affairs, 494), and the letter of 
Captain Reid, 14th October, 1814, to be found in the same vol., 
495. These letters are still more minute than the protest, in 
describing the details of events which brought on the first engage- 



64 BKIG GENEEAL AEMSTEONG. 

ment, and establish beyond a doubt, if credited, that the brig 
Armstrong acted wholly on the defensive. In Mr. Dabaey's letter, 
written " nine o'clock at night," to the Governor of the Island, he 
complains that "his Britannic Majesty's ships had ordered four or five 
armed boats to surprise and carry off the American armed schooner 
General Armstrong, which is lying here under the guns of the 
castle, on the protection of which she regarded herself absolutely 
in security." But if any doubt could exist upon this point, it would 
be removed by the letter of Charles W. Dabney, our present consul, 
21st May, 1853, written to the Secretary of the State (and on file 
in his department), in a spirit of patriotic indignation, on hearing 
of the award made on this claim. He says that, being at the time 
about 21 years of age, he was sent by his father to recommend Capt. 
R. to warp his brig under the guns of the castle, his father appre- 
hending danger as soon as he discovered that Lloyd's fleet was in 
the bay ; " that the order was immediately given by Captain Reid, 
and he went ashore. He then says : "Just as I was landing, ten 
minutes after I left, I heard the report of musketry. A Captain 
Smith, who had gone on board to see Captain Reid, came on shore 
with a message, informing us that, while in the act of warping in, 
they were approached by four boats, containing by estimate one 
hundred and twenty men ; that they were warned repeatedly, not to 
approach, or that he would fire into them, which, instead of heed- 
ing, only seemed to stimulate their exertions, and as there could be 
no mistake of their intention to take them by surprise, no attention 
being paid to their warning, the Captain had ordered his men to 
fire, which was immediately returned from the boats, killing one man 
and wounding the first lieutenant, but having found their reception 
too warm, they sued for quarter, which was immediately granted. 
They were then nearly alongside the Armstrong." The whole of 
this letter is full of instruction upon the point now in issue, and is 
now for the first time made public. An accidental conversation with 
a naval officer, recently from Fayal, having just led to the knowledge 
of its existence. The high character which the writer enjoys in this 



REPORT OF THE SPEECH OF P. PHILLIPS, ESQ. 65 

and all foreign countries, invests his statements with a value which 
cannot be over-estimated. 

It will be remarked, that the protest is sworn to by all the officers 
save one. We have the fact that the first lieutenant was wounded 
in the first engagement ; here was an important circumstance sworn 
to by the officer himself, corroborated by the others. A still more 
palpable fact was, that one seaman was killed. If these thino-s are 
not true, all these officers have committed willful perjury. They 
are not circumstances that could be misstated by inadvertence, and 
yet the English defend themselves on the allegation that their boats 
were unarmed. The omission of the name in the affidavit of the 
second lieutenant corroborates the statement that he was killed, and 
it will be remembered, as lending great strength to these state- 
ments, that they were made diwi fervet opMs— Captain Smith was 
an eye-witness, and narrated the events before the smoke of the 
battle had been blown away. There was, therefore, no time for any 
pre-arrangement of a falsehood, if we could suppose the parties vile 
enough to intend one, or so foolhardy as to attempt misrepresenta- 
tion of a scene witnessed by nearly " all Fayal." 

Thus far, may it please your honors, we have referred to American 
witnesses, but we have the testimony of the Portuguese officials 
entirely confirmatory of their truth. In the letter of the governor 
to his superior, of the 28th September (Doc. 14, p. 12), he writes 
that, having received, at ten minutes past nine, of the 26th, a note 
from the American Consul, "I went directly to the castle, and 
having been informed of the circumstances which led to these hostile 
proceedings, I learned that a boat had been sent from the British 
ships-of-war to examine the privateer, and on its return three others 
had been sent, armed, and that the captain of the privateer not 
wishing to allow them to come on board his vessel, a fire was begun, 
on both sides, the result of which was, that the second officer of the 
privateer was wounded, and two English were killed, and seven 
wounded." From the position of the castle, jutting out into the 
bay, as described in the chart, from the Secretary of State's office, 

6 



GG BKIG GEXEIUL ARMSTKON^G. 

its occupants had a most excellent opportunity to witness distinctly 
the order of events ; and it is from Portuguese witnesses we have 
the fact, that the boats attempted to board the privateer, that the 
fire which ensued came from both sides, and that three boats 
approached while one was returning. 

But the positive terms of harshness in which the governor speaks 
of the conduct of the British commander is more conclusive than 
any narration of details. He describes it as "a horrible and bloody 
combat, occasioned by the madness, pride, and haughtiness of an inso- 
lent British officer, who would not respect the neutrality maintained 
by Portugal." In a similar strain is the subject treated by the 
Marquis de Aguiar in his letter to Lord Strangford, Dec. 22, copy 
enclosed to our minister Mr. Sumpter [Doc. 14, p. 21]. "On a 
perusal of these papers his excellency will observe the outrageous 
manner in which that commander violated the neutrality his royal 
highness had resolved to maintain during the war, by audaciously 
attacking the American privateer General Armstrong, in the port of 
Fayal, under the guns of the Castle, &c. His excellency will also 
observe the base attempts of the British commander, at the time he 
commenced the unprovoked attempt on the American privateer, to 
attribute those violent measures to the breaking of the neutrality on the 
part of the Americans, in the first instance, by repelling the British 
armed barges that ivere sent for the jmrpose of reconnoitcring that 
vessel, advocating, with the most manifest duplicity, that they ivere 
consequently the aggressors. But what appears still more surprising 
is the arrogance with which the British commander threatened to 
consider the territory of his royal highness as enemies, should the 
governor adopt any measures to p)i'cvent them from taking possession 
of the American privateer, which they subsequently plundered and 
set on fire." 

"When it is considered by the court how dependent was the rela- 
tion of Portugal to England, and how reserved and cautious is the 
general tone of diplomatic correspondence, these outbursts of indig- 
nation against this "insolent British officer" afford evidence of the 



KEPORT OF THE SPEECH OF P. PHILLIPS, ESQ. 67 

highest degree that the truth of the American version had been 
made good by such sources of information as left the marquis no 
alternative but its full recognition. The marquis not only denounces 
the British commander, but the governor himself. " The censurable 
moderation of the governor during these outrages would have 
induced his royal highness to have immediately caused a process to 
have been instituted for the punishment of that officer, did not the 
idea of his having been governed by a wish to guard the inhabitants 
of that island from the ravages and evils which the British com- 
mander would not have failed to commit, merit his royal consi- 
deration." 

Such language, so bold and outspoken, cannot fail to convince 
your honors, that when these transactions were fresh, and before the 
finger of English diplomacy had been thrust into this negotiation, 
the aggressive conduct of the British officer at Fayal was as unre- 
servedly admitted by the Portuguese as it was strenuously insisted 
on by the Americans ; and more especially when it is remembered 
that it was directed against a government to whose generosity, 
energy, and wisdom, the Portuguese governor declares his people 
" owe, in a great measure, if not wholly, the fruits of peace." [Doc. 
14, p. 12.] 

Acting on these well-ascertained facts, Portugal insisted upon an 
apology and indemnity from the English government, and received 
them in 1811 and 1818 ; but no line of complaint was ever addressed 
to the American government upon this subject. 

Subsequently, and when the influence of the British government 
made itself felt in Portuguese diplomacy, an attempt was made to 
break the force of this important admission of the English by deny- 
ing the conclusions which it was seen would inevitably be drawn 
from it. Our minister, Mr. Clay, in reply to this denial, then asked 
for an inspection of the correspondence which had passed betweeu 
the Portuguese and English governments, that it might be fully 
seen what were the grounds assumed and conceded for this apology 
a'.id iuiemnity : and coucluded by declaring that, if the correspond- 



08 BEIG GENERAL ARMSTEOJSG- 

ence were uot produced, he would consider it as proved that ii 
would show Lloyd to have been the aggressor. In all the subse- 
quent correspondence, the Portuguese ministers make not even the 
slightest allusion to this request. [Doc. 5S, p. 46.] 

The presumptions necessarily arising out of the fasts of the ease 
are no less strong in fovor of the claimants than is the direct evi- 
dence. Chief among these are— 1st, The disparity between the 
forces engaged rendering it improbable that so weak a vessel should 
draw upon itself a contest which could not result otherwise than iu 
its destruction. 

2d. The approach, in the night time, of four armed boats from a 
hostile fleet, without a flag of truce, or other indication of a pacific 
character. 

These presumptions "are the result of the general experience 
of a connection between certain facts or things, the one being 
usually found to be the companion or the effect of the other. The 
connection (it is admitted) is not so intimate, nor so nearly universal, 
as to render it expedient that it should be absolutely and impe- 
ratively presumed to exist in every case, all eoidence to the contrary 
being rejected; but yet it is so general, and so nearly universal, that 
the law itself, without the aid of a jury, infers the one fact from the 
proved existence of the other, on the absence of all opposing evi- 
dence. [1 Greenleaf Evidence, sec. 33.] 

This rule is not unknown to the law of nations, as will be seen iu 
the case of the Atlanta, 6 Rob. Adml. Rep. 440, where a neutral 
vessel, carrying despatches of the enemy, it was held as a conclusive 
presumjjtion that they were hostile [see also The Pizarro, 2 Wheat. 
221, 242 ; The Hunter, 1 Dods. Adm. 480]. 

Opposed to all this accumulated proof, ia the British account, 
contained in the letter of Captain Lloyd to the governor of Fayal, 
and the affidavit of Lieutenant Fausset and some of his crew. In 
the former it is stated " that one of the boats of his Britannic 
majesty's ship under my command was, without the slightest provo- 
cation, fired on by the American schooner General Armstrong, in 



REPOKT OF THE SPEECH OF P. PHILLIPS, ESQ. 09 

consequence of which two men were killed and seven wounded. In 
consequence of this, I am determined to take possession of that 
vessel, and I hope that you will order your forts to protect the force 
employed for that purpose." It is important that your honors 
should observe that this was the response to the letter of the 
governor, dated " 10 o'clock at nipht;' for if it be established that 
prior to that hour more than one boat had encountered the brig, 
then its silence as to others would be a fraudulent suppression of 
the truth. It will also be observed, that, in his letter no mention is 
made of any circumstances explanatory of the object or mission of 
the boat of the Plantagenet, then lying at anchor a mile from the 
privateer. This omission is supplied in Fausset's deposition, though 
it equally ignores the existence in this contest of any but " one 
boat." 

This deposition, dated 2Tth September, 1814, is found in Mr. 
Clay's letter to Count Tojal [Sen. Doc. 53, p. 42], and states 
" that, on Monday, 26th inst., about eight o'clock in the evening, he 
was ordered to go in the pinnace or guard-boat, unarmed, on board 
her majesty's brig Carnation, to know what armed vessel was at 
anchor in the bay, when Captain Bentham, of said brig, ordered hira 
to inquire of said vessel (which by information was said to be a 
privateer). When said boat came near the privateer, the Ameri- 
cans hailed and desired the English boat to keep off, or they would 
Ere upon her ; upon which Mr. Fausset ordered his men to back 
astern, and with a boat-hook was in the act of doing so, when the 
Americans, in the most wanton manner, fired into said English boat, 
killed two and wounded seven, some of them mortally, and this not- 
withstanding said Fausset frequently called out for quarters ; said 
Fausset solemnly declared that no resistance of any kind was made 
nor could they do it, not having any arms, nor of course sent to 
attack said vessel. Also several Portuguese boats at the time of 
said unprecedented attack were going ashore, which it seems were 
said to be armed." We will pass over the singular construction of 
this deposition by which the deponent changes his narrative from 



70 BRIG GENERAL ARMSTRONG. 

the first person, and speaks of himself as " Mr. Fausset" and " said 
Fausset ;" and again changes from the present tense, " and solemnly 
declared," &c. We also pass over the singular paragraph with 
which it concludes, all tending to raise serious doubts as to its 
genuineness and fairness. In this affidavit we find that the trans- 
action is confined to the privateer and "one boat." Not the slight- 
est mention is made of any other English boats having been fired 
into, or in any way involved in an encounter with the brig. The 
motive of the approach by this " one boat " is declared to have been 
to make an inquiry merely ; and as the order was to inquire of the 
" Carnation," one of the English fleet, it is somewhat singular that 
Fausset should have been " ordered to go unarmed." The deposi- 
tion particularly emphasizing the word " unarmed." 

The statement of the motive of the approach made it necessary 
to limit the number to " one boat." The deposition, therefore, is 
very clear that there was only "one boat" — that boat a mere 
" pinnace," and " unarmed." 

That this is false has already been shown ; that the lieutenant 
knew it to be false, is seen in the miserable attempt to bring into 
the scene of action ^* several Portuguese boats at the time going ashore, 
and which it seems were said to be armed." It is hardly necessary to 
say that, if Captain Reid had fired into Portuguese boats and killed 
and wounded their men, we should certainly have seen something 
of it in the letter of the governor of the Azores ; at any rate, some 
representation, if not demand for reparation, would have reached 
our government. This attempt to account for a number of boats, 
miserable as it is, is important, as showing what at the time 
was pressing upon the mind of this officer as a difficulty neces- 
sary to be overcome — to wit, that there were other boats in his 
company. 

Your honors will observe that, from the date of the letter from the 
Marquis de Aguiar to Lord Strangford, enclosed to our minister, 
Mr. Sumpter, Dec, 1814, we received no communication from the 
Portuguese government until that of Senor de Castro's addressed 



REPORT OF THE SPEECH OF P. PHILLIPS, ESQ. 71 

to Mr. Barrow, on the 3d August, 1843. [Doc. 53., p. 14.] This 
was iu reply to Mr. Kavanagh's note, of llth February, 1831, and 
Mr. Barrow's note, 26th May and 10th October, 1842. After near 
six years' delay, the minister makes a response, in which, after express- 
ing his surprise at the appearance of this claim, " after a silence of 
so many years," he says that " the necessary orders were given to 
proceed to the most exact examination, from which some delay has 
occurred in this answer." It was impossible, without them, to obtain 
a thorough knowledge of a case represented in said notes under such 
serious circumstances." 

Having thus made this " exact examination" he says : "The accounts 
received all agree that the American brig, under the pretence that 
four boats, from the said British vessels, were approaching her, fired 
upon them, killing some of the men, and wounding others. 

"It is alleged, on the part of the United States, that these boats 
contained armed men, who had a hostile intention. At the same 
time, it is affirmed, on the part of Great Britain, that they only car- 
ried inoffensive men, who were going ashore from their ships off duty, 
and that they casually met the American brig when she was preparing 
to leave the port of J^ayal." 

The great and controlling fact alleged by the American officers is 
thus, after the most " exact examination," found to be true by the 
Portuguese minister ; and the value of this finding is enhanced by 
the consideration that it was stated by one who was seeking every 
means to defeat their claim. 

Having thus determined that the brig was approached by "four 
boats,^'' it became necessary to abandon the ground that the motive 
was peaceful and lawful inquiry, and for the first time, it is alleged 
tliat these boats were going ashore off duty, when they casually met 
the American brig, an allegation not only novel, but in direct cou- 
tradiction to Faussct's deposition, and wholly inconsistent with the 
idea that Captain Lloyd, in his letter, told the " whole truth." 

In this connection, it is proper to remark that, down to this period, 
the deposition of Lieutenant Fausset had never been alluded to iu 



72 U.aj (liiNKR^X ARMSTKONG. 

auy of the correspondeace. It makes its first appearance in the 
letter of Count Tojal, written to Mr. Hopkins [Doc. 53, p. 33], on 
29th September, 1849, 35 years after the transaction, and after the 
date of Lloyd's letter and Fausset's deposition, and when driven to 
the wall by Mr. Hopkins's able argument 1 The quotation in this 
letter rendering the account of De Castro wholly inconsistent, the 
Count is necessarily driven back to the position of the British offi- 
cers, and his statement proceeds, like theirs, wholly to ignore the 
fact of there being but " one boat," and concludes with the decla- 
ration " that this serves to show the incorrectness of the statement, 
that the barges which Jirst approached the privateer were four in 
number, and all armed ; whereas the first was alone and unarmed, 
and consequently the fire made upon her was, by no means, pro- 
voked, and especially not made in self-defence, as is alleged." 

Your honors will perceive that this is not an express denial that 
" four boats" approached the Armstrong, but only that Fausset's 
was the " first," nor does it deny that there were boats armed, but 
only that Fausset's was not. Now, we can reconcile all the state- 
ments upon this point. It will be remembered that, in Captain 
Reid's letter, he states that the boats came from the Carnation. 
Fausset admits that his boat did advance from the Carnation. The 
evidence also shows that the Carnation was anchored within half 
pistol-shot of the Armstrong. Now, supposing that the object 
being to surprise the privateer, four boats put off from the Carna- 
tion, Fausset's in the lead, unarmed, his object being to engage the 
ofQccrs of the privateer in a parley, and thus throw them off their 
guard, while the other boats came up. Fausset fails in this ruse de 
guerre. To save himself, he pushes off with his boat-hook, and is 
getting out of the way when the other boats come up ; the fire is 
opened and returned, by which men in Fausset's boat are killed and 
wounded, being within range although retreating. Thus Lloyd's 
letter and Fausset's deposition, as to the fact of the first boat being 
unarmed, may be, true without at all invalidating the sworn testi- 
mony of all the American officers, of Captain Smith, who was on 



o 



EKPCiKT OF THE SPEECH OF P. PHILLIPS, ESQ. 73 

board, and detailed the transaction a fevy minutes after it occurred ; 
of the governor of the Azores, from information derived from his 
people at the castle ; from the Marquis de Aguiar, and finally, as 
late as August, 1843, from De Castro. 

Returning now to an examination of the transaction, as tested 
by the probable motives of the parties, and by their character, we 
find the commander of this fleet characterized by insolence and unre- 
strained daring. The testimony of C. W. Dabney shows that he 
had acquired iu the British navy the title of " Mad Lloyd." It also 
shows that his conduct to the governor of the Azores was over- 
bearing to the last degree. In his first letter to the governor, 
informing him of his intention "to take possession" of the Arm- 
strong, he expresses his expectation " that he will order his fort to 
protect the force employed for that purpose," and through the note, 
written by the English consul, at his instance, he declares that he 
will send a brig to fire on the schooner, and that, if he (the 
governor) should allow the masts to be taken from the schooner, 
he would regard the island as an enemy of his Britannic majesty, 
and would treat the town and castle accordingly. [Greave's letter, 
27th September, 1814. Sen. Doc. 14, p. 19.] Demands such as 
these, requiring a neutral government not only quietly to submit to 
an invasion of its rights, but to share in its own degradation, could 
only proceed from a madman or a despot. 

But it is not, may it please your honors, alone for the purpose of 
exhibiting the lawless insolence of this officer that I refer to these 
letters. They contain the motive which induced this invasion. The 
object clearly was to obtain " possession''^ of the privateer ; thence 
the anxiety that the governor should not permit the " masts'" to be 
taken from her. It is known, as a historical fact, that she was part 
of the fleet ordered to rendezvous at Jamaica, for tlie purpose of 
attacking New Orleans, and this light draft vessel was deemed 
important for the navigation of the Mississippi. This is the reason 
why, although the brig Carnation had anchored within pistol-shot, 
she did not at once use the means for destroying her. Two attempts 

5 



74 BKIG GENEBAI. AEMSTEONG. 

were made to capture her by boats. These failing, the Carnation 
made a demonstration the next day, but ascertaining that capture 
was impossible, she finally resorted to destruction. In addition to 
all this, we have the letter of Mr. Charles W. Dabney, our preseni 
consul, already referred to, testifying that Captain Lloyd had, a few 
weeks before, publicly " declared in Fayal that he had boats pre- 
pared for cutting out privateers, and that he would take them 
wherever he found them." 

Again, we have the evidence of history, that such violations of 
neutrality by British officers, were of frequent occurrence. Mr. 
Monroe, writing to Mr. Sumpter, on 3d January, 1815 [Doc. 14, 
p. 20], while instructing him as to this very case, says: "The 
growing frequency of similar outrages, on the part of Great Britain, 
renders it more than ever necessary to exact from nations in amity 
with them a rigid fulfillment of all the obligations which a neutral 
character imposes," and in less than ten days after this occurrence, 
the governor at Fayal is called upon to witness another flagrant 
outrage of the rights of his port by another British captain. On 
the 4th October, 1814 [Doc. 14, p. 19], he writes to Aceredo, "By 
my letter, of the 28th ult., your excellency is informed of all the 
painful occurrences which have taken place in this island, on the 
26th of that month. By the accompanying copy. No. 1, your 
excellency will see how the British commander Somerville acted 
against the general law of all nations^ and in manifest violation of the 
14 th article of the Treaty of Commerce and Alliance between his 
Britannic Majesty and our Lord the Priuce Regent." 

We have now gone through the evidence. In this long proces- 
sion of witnesses, there is one looked for but not found. "We no- 
where see the British consul. From his residence at Pico, at the 
mouth of the harbor, he sent a messenger to the Plantagenet as she 
passed his island home. That messenger doubtlessly informed the 
commander, as did the pilot, who, and what it was that carried so 
saucily the " bit of striped bunting " that was floating in fancied 
security under the guns of the Portuguese caetle. The consul how- 



EEPOiLT OF THK SPEECH OF P. PHILLIPS, ESQ. 75 

«ver, nowhere appears among those British oificiab who seek to 
tarnish one of the brightest actions of our naval history. His 



absence is honorable to him, and speaks volumes in favor of that 
judgment, which, in the name of the country, and in vindication of 
truth, we now demand. Let this controversy for indemnification 
terminate as it may, we desire that the fame and good name of the 
gallant officers and men associated with this memorable transaction 
should be freed from the staiu which an unjust and false award has 
stamped upon them. 

Assuming, as I think we have a right now to do, that the British 
boats approached the privateer for a hostile purpose, it can scarcely 
be necessary to adduce authorities to prove that this was a viola- 
tion of the neutrality of Portugal. It is not necessary that the 
measure should in itself be absolutely hostile. It is enough that it 
necessarily leads to hostility. [Wildman, 2 vol., 148, Twee Geb- 
roeders ; 3 Rob. Admr.. 164, Nancy Bee, p, T.] 

If then our rights have been invaded in a neutral port, and our 
property destroyed, we are entitled to reparation. It is no answer 
to our demand, that Portugal was weak and unable to afford pro- 
tection. Portugal, as a sovereignty, stands among the Nations, 
demanding equality of privilege. She is entitled to it, but this 
right carries along with it, equality of obligation. Equal privi- 
leges and equal obligations go hand in hand ; when a nation can 
no longer fulfill the latter, she must yield up the former aud be 
incorporated with some other nation capable of discharging national 
obligations. There is no measure for determining the obligations of 
nations according to their strength, any more than there is for deter- 
mining the duties of individuals. " A dwarf is as much a man as a 
giant. A small Republic is no less a sovereign state than the most 
powerful Kingdom. Whatever, therefore, one state has the right 
to do, so may any other, aud whatever one state is. bound to do, 
80 must every other." [Vattel's Law of Nations, Prelim., § 18, 19. 
Woodern Lectures, 1 vol., p. 41.] 

These great principles seem to me to be sufficient to dispose of 



76 BKIG GENERAL ARMSTRONG. 

this point, and to the non-observance of them may be attributed 
some of the apparent conflict which I frankly confess is to be found 
in the books. The most of the learning to be met with in the 
elementary treatises has reference to illegal capture and restitution. 
The principle that restitution is due is universally admitted, and it 
is difficult to understand upon what reasoning the neutral is bound 
to restoration, which is not equally applicable to reparation where 
restitution is impossible. Chancellor Kent, speaking on this subject 
says : " It is not lawful to make neutral territory the scene of 
hostility, or to attack an enemy within it ; and if the enemy be 
attacked, or any capture made under neutral protection, the neutral 
is bound to redress the injury and effect restitution." [1 vol. Cora., 
p. 122.] I do not find that the obligation of restitution is at all 
limited by the power of the neutral government. 

The case of liability for destruction is broadly stated^ by Molloy 
in his ''Jure Maritirao," in illustration of which, after reciting nota- 
ble instances of adherence to neutral rights, he says : " But they 
of Hamborough were not so kind to the English when the Dutch 
fleet fell into their road where rid at the same time some English 
merchantmen, whom they assaulted, took, burned and spoiled ; for 
which action and not preserving the peace of their port they were, 
by the laio of nations, adjudged to answer the damage, and I 
think have paid most of all of it since." [7 Edition, B. 1, C. 1, p. 13.] 

It was questioned whether, in cases of restitution, the expense 
should not be borne by the injured party. But this is treated by 
Bynkershoek with somewhat of scorn. " That the injured party 
should bear the expense appears to me to be very unjust, as it is 
the duty of the sovereign of the territory to revenge the injury done 
to himself ; for it is an injury done to him to violate a port which is 
equally open to all his friends. And what if he who committed the 
violation goes away immediately ? Is the individual whose vessel 
has been taken, to make war at his own expense ?" Ho then pro- 
ceeds to cases where nations have entered into treaties which stipu- 
late that the Government will use their utmost endeavors that the 



EEPOET OF THE SPEECH OF P. PHILLIPS, ESQ. 7T 

captured property should be restored." And says : " If it be the 
duty of the sovereiga to use his utmost endeavors to effect that pur- 
pose it follows that he must do it at his own expense. Nay hj 
going to war, if other means are insufficient. Such is the law which 
is observed among all nations. (Bynkershoek's Law of War, by 
Duponceau, p, 60.) These citations maintain the only true rule 
by which the relation of nations can be safely governed, to unt 
" That whenever the law of nations imposes a positive duty ; it at 
the same time imposes a positive obligation to indemnify for losses 
sustained on account of the non-fulfillment of that duty." 

If we were to test the liability of Portugal by the rule contended 
for by her own ministers, that a neutral is not liable for losses when 
she employs "all the means in her power^' to prevent them, it would 
be difficult to find in the occurrences an escape from responsibility — 
for no means but two imploring notes were used by the Portuguese 
officers. 

But if the liability of Portugal was otherwise doubtful, our own 
construction of the law of nations would seem to be conclusive. 
On January 3rd, 1815, Mr. Monroe to Mr. Sumpter : " The Presi- 
dent does not entertain a doubt of the promptitude which the Prince 
Regent will manifest, particularly when he is informed of the aggra- 
vated nature of this case. You are requested to bring all the 
circumstances of the transaction distinctly to the view of the Por- 
tu"-uese government, and to state the claims which the injured 
party has to immediate indemnity/.'" [Doc. 14, p. 20.] 

Mr. Adams to the Chevalier Corrende Serra, March 14, 1818 : 
" Of the facts of the case, there is, and can be no question, having 
been ascertained not only by the statements of the injured parties, 
but by the official reports of your own commanding officer. It is 
hoped your government will, without further delay, grant to the 
sufferers by that transaction the full indemnity to which they are by 
the laws of nations entitled:' [Doc. 53, p. 13.] 

Mr. Dickens to Mr. Kavanagh, 20th May, 1835 : " The Portu- 
guese authorities at that place (Fayal) having failed to afford the 



78 BRIG GENERAL ARMSTRONG. 

vessel that protection to which she was entitled in a friendly port 
which she had entered as an asylum, the government is unquestion- 
ably bound, by the law of nations, to make good to the sufferers all 
the damage sustained in consequence of the neglect of so obvions 
and acknowledged a duty." [Doc. 53, p. 24.] 

Mr. Webster to Mr. Barrow, 15 January, 1842 : " Upon receipt 
of this letter, you will, without delay, make yourself acquainted 
with the circumstances, and address a note to the minister. The 
amount of the claim the Department will not attempt to fix ; but 
its justness, I believe, has not been denied" And again, on 18 August, 
1842 5 " Both these claims are regarded as just by this government,, 
and will not he relinquished under the objections heretofore made to 
them by the Portuguese government, which are entirely unsatisfactory.''^ 
[Doc. 53, p. 40, 42.] 

Mr. Clayton to Mr. Clay, 8 March, 1850: "If within that 
period, satisfaction is not given and due provision made for the pay- 
ment of our citizens, you are ordered to demand your passports, and 
return to the United States." [Doc. 53, p. 68.] 

The court will remark, that at the time Mr. Webster declared 
that " the claim will not be relinquished under the objections here- 
tofore made," Portugal had assumed the ground now attempted 
to be maintained by the solicitor — that her weakness and inability 
to afford protection, freed her from responsibility for the loss 
sustained. [Kavanagh to Forsyth, 18 March, 183t. 4 Sept., 
1831 Doc. 14, p. 33, 34.] 

Under these repeated assertions, emanating from the Executive 
of this government, our ministers at Portugal continued to press 
the claim, as one founded upon the law of nations, and uninfluenced 
by the question of the relative power of the two governments of 
Portugal and England. The force of these admissions is attempted 
to be broken by the argument, that they were the mere statements 
of an advocate pressing the claim of his client ; with proper respect 
to the solicitor, it seems to me that this comparison is derogatory 
to the dignity of the government which he represents. No govern- 



REPOET OF TOE SPEECH OF P, PHILLIPS, ESQ. 79 

ment, under the law of uations, is justifiGcl in demanding from 
another what it is not ready to give under similar circumstances. If 
Portugal had yielded to our assertion of right, and a similar 
demand against us had been presented by another nation, no 
American minister could have been found so wanting in self-respect, 
as to have shielded himself behind the argument now set up. 

Upon these principles we assert, that the present claimants had 
a demand for indemnification against Portugal. This demand 
having been released through the action of this government, the 
question now is, whether this has been effected by such means as to 
make it liable to indemnify them. 

In looking through the voluminous documents which make up the 
history of this case, we are struck with the repeated misfortunes 
(I use the mildest word), it has been subjected to. From Decem- 
ber, 1815, to May, 1835, the government seemed to have wholly 
abandoned the interest of the claimants. During this whole period 
of twenty years there is not a line addressed to the Portuguese 
government ; when it is resumed in 1835, we find our minister, Mr. 
Kavanagh, reporting de novo to our Secretary of State, the facts 
of the case, wholly innocent of all knowledge of past negotiations, 
[30 Jan., 1836 to Mr. Forsyth, Doc. 14, p. 28], and stating 
further, that there was no record in the archives of the correspon- 
dence with Mr. Sumpter. In this letter, as in the one under date 
26 December, 1836 [p. 31,j Mr. Kavanagh also writes, that he 
had withheld the Armstrong case, to "prevent embarrassment in the 
settlement of the others.^'' 

When, finally, the Armstrong case is again presented to the 
Portuguese government, it is upon the letter of our consul enclose- 
ing copy of Captain Reid's protest, and the prior letter of the 
consul, written during the night of the engagement. These are 
the documents, solemnly paraded, and more, solemnly marked. A, J3, 
C, upon which the controversy was resm-rected from the sleep of 
death, to which the government had apparently consigned it. 



80 BRIG GEN'KRAL AKMSTKONO. 

[Kavaiiagli to Minister Foreign Affairs of Portugal, It February, 
1837. Doc. 14, p. 32.] 

As may have been anticipated, the first reply of the Portuguese 
government, opens with the declaration — " Tliat her majesty's 
government cannot but be surprised, that this claim has made its 
appearance after a silence of so many years," [3 August, 1848. 
Doc. 14, p. 18.] Ho'.v feeble was the attempt to explain this 
apparent abandonment, will be seen in the letter of Mr. Hopkins 
to Count Tojal, and the reply thereto. [Doc. 53, p. 21, 34.] 

The next stage in this diplomacy, is the peremptory demand made 
by Mr. Clay, under the instructions of Mr. Clayton [Doc. 58, p. 
69], in which he limits his stay at the Portuguese court to 20 days, 
without a satisfactory adjustment of all the American claims, and 
here again we find the unfortunate claim of the Armstrong over- 
shadowed and subordinated. Count Tojal, in his reply of 6 July, 
1850 [Doc. 58, p. 18], "yields to the force of circumstances, and 
without again reverting to the justice or injustice of the claims 
presented, and onli/ pro bono pads, offers to pay the said mentioned 
claims, amounting to $91,t2t according to Mr. Clay's account, with 
the only exception of that relating to the privateer General 
Armstrong. In respect to this claim, the undersigned cannot 
deviate from the proposal heretofore made to Mr. Clay, that of so 
important a claim being submitted to the decision of a third power, 
the claim being of so different a nature from the others. For as 
these latter have reference only to Portugal, that of the privateer 
involves a imnciple of national law, the appRcation of which does 
not merely regard Portugal, but all other nations." 

It is in this letter we find conclusive proof that the obstinacy of 
Portugal was stimulated and directed by English influence : "Her 
majesty's government, besides the arguments contained in the notes 
formerly addressed to the government of the United States, finds 
its judgment and the manner of weighing the question strengthened 
with the opinion of her Britannic majesty's government, which has 



KEPOET OF THE SPEECH OF P. PHILLIPS, ESQ. 81 

always deemed this claim of the government of the United States as 
unjust. The subsisting relations between her most faithful majesty's 
government and that of her Britannic majesty, oblige the under- 
signed to communicate to the British government all that has taken 
place," &c., &c. 

Now, this question of "National Law*' was the liability of Por- 
tugal to make good losses occasioned by a force which she was 
physically unable to resist. It was in relation to this very objection, 
and after it had been solemnly urged, that Mr. Webster declared, 
In 1842, that this claim would "not be relinquished." Mr. Clayton 
had written, on 8th March, 1850 [Doc. 53, p. 68], that, in reference 
to an arbitration, the President had directed him to say, " that no 
such course, under the circumstances, would receive his sanction." A 
sudden change having taken place in our national administration, we 
find Mr. Webster writing, on 23d August, 1850 [Doc. 53, p. 83], 
that the President " deems it advisable to accept the proposition 
offered in the note addressed to you, by the Count de Tojal, on the 
6th July last." 

What was that proposition ? It was evidently one by which, to 
say the least of it, om?* claim was placed at hazard, in order to obtain 
the payment of others. The proposition was a complete thing. The 
United States could only accept it as a whole. There was no 
admission by Portugal of the justness of the claims she agreed to 
pay. Ou the contrary, she denied their justness. The proposition 
was "pro bono pads,'' and this consideration would not be secured 
by the acceptance of the money and the rejection of arbitration, 
for the greatest disturber of her peace. Upon this point, words 
might be multiplied, but not argument. The statement of the 
proposition vindicates. itself. [2 Parsons on Contracts, p. 29.] 

Our claim thus placed at hazard for governmental purposes, and 
for considerations in which we had no special interest, we now pro- 
ceed to the examination of the treaty by which the agreement to 
arbitrate was provided for. 

I do not think it necessary to dwell upon the letters of Captain 

V 



82 BRIG GENERAL ARMSTRONG. ' . 

Reid, written from New York, the 26th of August, or that of S. C. 
Reid, Jun., of 5th September, inquiring of the truth of rumors that 
such an arbitration was contemplated. Their dates show that they 
were written after the arbitration had become a fixed fact, and so 
Mr. Webster reph'es to them. Both of these letters, in respectful 
terms, question the propriety of the act, and after they had learned 
that the government was absolutely committed, nothing was left to 
them but.subraission. 

The treaty having been perfected by the Senate, Mr. Webster, on 
the 20th March, 1851, writes to Mr. Hadduck [Doc. 53, p. 85], 
directing him that, in carrying into efiFect the 3d article of the 
treaty, he will compare jointly with the Portuguese government 
the "copies therein specified," and further, he says: "You will 
understand, of course, that these copies are Hmitedto such commu- 
nications as have passed between the American Legation and the 
Portuguese government, at Lisbon," &c., &c. 

On the 12th July [Doc. 53, p. 86], he writes to him again, and 
referring to his former communication, he says : " To provide against 
the omission of any important part of the earlier portion of the cor- 
respondence — I mean that which passed in 1814 and 1815, in Rio 
Janeiro, where the court of Portugal, at that time, resided, and 
which it could not have been intended to exclude — I transmit you 
herewith a printed copy of the correspondence, as communicated to 
Congress, on 15th December, 1845." 

The erroneous limitation in the fonner letter is attempted to be 
remedied by the latter. But before this second letter reached its 
destination, Mr. Hadduck had already met the Portuguese minister, 
and compared and certified the evidence to be submitted to the 
arbitrator. [See Mr. Hadduck's letter, 11th July, 1851. Doc. 53, 
p. 87.] It may be that the award is to be attributed to an imper- 
fect presentation of the case, and thus vindicate the remark made 
by Mr. Bayard, in the Senate, that he " finds on the face of the 
decision the want of a proper presentation of the case," attributable 
to " a gross neglect on the part of the ofiScer of the government." 



J5EP0ET OB" THE SPEECH OF P, PHILLIPS, ESQ. 83 

!rhe goverament having thus submitted this case to arbitration 
•without the assent of the claimants, construed the 3d article, which 
provides, " that copies of all correspondence which has passed, in 
reference to the claims, &c., shall be laid before the arbiter," &c., 
as a limitation excluding the right of the claimants to be heard, or 
in any manner to appear in the case. 

iNow, we do not admit that the government has a right, under 
such circumstances, to submit the claim of one of its citizens to the 
arbitrament of a third power, without holding itself liable to make 
good the claim, if it can he shown to be founded in justice. But 
waiving this, we contend, if a case he thus submitted, on the great 
principles of jxbstice which govern the affairs of nations and men, the. 
parties should have their " day in court," to submit such proofs and 
zrguvients as they may deem necessary to the assertion of this right. 

Your honors will, I trust, pardon my reading an extract from 
Chancellor Walworth, in reference to the binding eflQcacy of awards : 
" I apprehend it would be carrying the principle too far to say that 
the decision shall be conclusive on the party, who has never had a 
chance to be heard before the arbitrator, upon the subject of the 
submission." I regard it " as a fundamental rule of construction, 
in reference to every transaction in the nature of a judicial pro- 
ceeding, that the contract of submission necessarily implies that the 
arbitrator is not authorized or empowered to decide the question in con- 
troversy without giving the parties an opportunity to be heard in 
relation thereto, unless, by the terms of submission, the right is 
waived." And the Chancellor quotes Lord Eldon, in a case 
where an act of sederunt was relied on, as saying, "that by the 
great principles of eternal justice, which was prior to the act of 
sederunt, it was impossible that an award could stand where the 
arbitrator heard the one party, and refused to hear the other." 
[Elmeudorf vs. Harris, 23 Wend., 633.] And the same principle 
has been adjudicated in the Supreme Court of the United States, to 
which we may now add the admission in the learned solicitor's brief, 
that " it is not necessary to specify that the arbitrator shall hear and 



84 BEIG GENERAL AEMSTEOKG. 

decide upon the law, and the facts which shall be submitted by the 
claimants, through their government ; that is implied from the office 
of arbitrator:' [Printed brief, p. 5.] 

I submit, with unfeigned respect for that great statesman and 
jurist, who decided upon the construction of this article of the 
treaty, that there was nothing in its terms which took from the 
parties the right they claimed under it. But whether this construc- 
tion was right or wrong, our claim for redress is unaffected, as in 
the one case, the injury would flow from an executive act, and in 
the other, from the treaty-making power. In either case, the parties 
would have been damaged by an act of their government against 
right and justice. 

We come now to the question, " what is the scope and object of 
the submission ?" 

To answer this, we must revert to the inquiry, what was claimed 
on the one hand, and denied on the other ? 

1. No dispute ever arose as to the amount of the claim. 

2. The right to indemnity against Portugal was never alleged 
but on the assumption of the truth of Captain Reid's statement, 
that he acted in self-defence. [Hopkins to Count Tojal, Doc. 53, 
p. 22.] 

3. Portugal, upon the admission of our premises, denied that any 
such liability existed under the law of nations. The whole discus- 
sion was in the nature of a demurrer which, admitting the facts to 
be true, denied the conclusion of law. See 

Doc. 53, p. 33, Kavanagh, . . , 18th March, 1837 

34, do. . . . 4th Sept., 183^ 

" 36, do. . . , 6th April, 1831 

" 76, Count Tojal, . , 6th July, 185€ 

Looking to the correspondence for the'purpose of isolating the 
point of difficulty, and then referring to the language of the 2d 
article of treaty, I am constrained to the conclusion that the 
matter referred was the " question of public law involved in the 



REPORT OF THE SPEECH OF P. PHILLIPS, ESQ. 85 

Armstrong case," upon which the parties had not beea able " to come 
to an agreement:' This specific question was, whether the weakness 
of Portugal released her from liabihty for the damage sustained by 
the Armstrong, or the illegal proceedings of the British fleet at 
Fayal. If Portugal had at any time rested her denial of responsi- 
bility upon the ground that we were the first aggressors, it would 
have at once tendered an issue of fact, which was capable of easy 
solution. If this construction be correct, then, upon the plainest 
principles of municipal and national law, the award not being 
responsive to, but ezceeding the submission, would be void. 
[Vattel's Law of Nations, p. 2Y6, 211. Wildman, I vol., p. 186. 
Steers and Dashel, 1 Esp. N. P. C, p. 167.] 

If, however, this view be erroneous, and the question of fact was 
submitted by the treaty, then our complaint is stronger of the gross 
wrong and injustice in submitting this case for adjudication on a 
question of facts, and depriving the parties of the right to improve 
the evidence by such further proof as in their opinion their case 
demanded. It will be remembered that this transaction took place 
"in the face of all Fayal, and a respectable number of strangers." 
It was capable of the fullest elucidation. The claimants had 
presented their claim on their own statement alone, as sufficient for 
the initiatory action of their own government, but they had never 
prepared it for final adjudication by any tribunal whose judgment 
was to conclude them. Could there be a greater wrong committed 
against their rights, than to force them, in this state of unpreparedness, 
to an arbitration, which, by its terms, excluded them from all right to 
be heard ? 

If, during the negotiations, the Portuguese ministers had ever 
rested their denial of liability upon the ground that the proof was 
not sufficient as to the facts, the claimants could have immediately 
made good the deficiency, or at any rate brought forward such 
evidence as was within their power, and upon which they were 
willing to rely. This contingency was not omitted in the instruc- 
tions of Mr. Webster, who, writing on the 15th January, 1842, to 



86 BfilG GENERAL ARMSTRONG. 

Mr. Barrow, says — " If tie inadmissibility of the claim is made to 
depend upon the defect of evidence, or upon any other cause, you will 
ascertain precisely what further evidence is required, in addition to 
that which has already been communicated by Captain Reid." 
[Doc. 14, p. 40.] 

I conclude this point by repeating — that if the question of 
national law was alone submitted, then the award, as to the facts, 
is not of any validity. If the facts as well as the law were 
submitted, then the still greater wrong has been done to the 
claimants, by excluding them from the right to prove the facts and 
vindicate the claim. 

The award of Louis Napoleon impliedly admits the liability of 
Portugal under the law of nations. Ilis language is, "That 
Captain Reid, not having applied from the beginning for the inter- 
vention of the neutral sovereign, &c., ' released that sovereign of the 
obligation in which he was to afford him protection, by any other 
means than that of a pacific intervention^^ Again he says — " that 
the government of her most faithful majesty cannot be held respon- 
sible, &c., ' without the local officers and lieutenants having been 
required in proper time, and enabled to grant aid and protection to 
those having the right to the same.^ " 

Upon the facts it is considered, that if it be clear that " some 
English long-boats, under the command of Lieut. Fausset approached 
the American brig, it is not certain that the men who manned the 
boats aforesaid were provided with arms ctnd ammunition.''^ 

That " it is evident in fact, &c., that the Americans having hailed 
them, and summoned them to be ofif immediately, fired upon them, 
Ac, without any attempt having been made on the part of the crew 
of the boats to repel at once force by forced 

It will thus be perceived, that having decided the law in our 
favor, our claims was rejected. 

1st, Because it was uncertain that the boats were armed. 

2d, That we did not apply for protection, before we fired upon 
the boats. 



EEFOKT OF THE SPEECH OF P. PHILLIPS, ESQ, 87 

The controlling fact, which must necessarily elucidate the 
approach to the brig, whether there were more than " one boat," 
is not found against the claimants. If our statement be correct, 
and it is not denied by the award, the question must be answered 
—why did four long-boats of the enemy approach the brig? 
Again the fact is not denied, that one man was killed and one 
wounded on board of the brig— but the award states that it was 
" not certain, that the men who manned the boats were provided 
with arms and ammunition." How, then, did the loss and .injury 
take place ? The only certainty found by the award is that the 
boats " did not repel at mce force by force "—without knowing 
how to measure time as applicable to this phrase ; it is evident that 
if they did return the fire, it was as soon as they were ready ; 
and whether this was one minute or nine after they received it, 
could make no difference in this transaction. 

Looking through the whole case, I believe your honors will agree 
with me in saying, that'a just claim on the part of the plaintiffs has 
been lost to them, and that the loss has been occasioned by the 
action of their own government, and there now remains only the 
question, whether this government is bound to make good the loss 
which it has occasioned ? 

In the formation of a government, individuals yield up the right 
to redress their own wrongs. This is submitted to the power which 
represents the whole society. For the redress of private injuries, 
municipal laws %re ordained ; for wrongs committed by a foreign 
government, the injured party looks to the power of his own 
sovereign, and to the law of nations. Each citizen owes allegiance 
to the society, and in return receives from that society its protec- 
tion. In the language of a learned writer — " In the act of 
association, by virtue of which, a multitude of men form toge- 
ther a state or nation, each individual has entered into negoti- 
ations with all, to promote the general welfare ; and all have entered 
into engagements with each individual to facilitate for him the 
means of supplying his necessities, and to protect and defend him." 



88 BKIG GEIJEliAL AKMSTKONO. 

[Vattel, § 16, p. 4.] Again, " whoever uses a citizen ill, indirectly 
offends the State which is bound to protect the citizen ; and the 
sovereign of the latter should avenge his wrongs, punish the 
aggressor, and, if possible, oblige him to make full reparation, since 
otherwise, the citizen would not obtain the great end of civil 
association, which is safety." [§ 11, p. 116.] 

If the government, for any considerations of the general welfare, 
sacrifices the rights of an individual, the loss should be made good 
by the means of the whole, and thus equalize the contribution and 
burden. This is a principle of universal justice, applicable alike to 
the affairs of government and individuals. Thus, by the Rhodian 
Law, it is declared that, " if goods are thrown overboard, in order 
to lighten the ship, the loss incurred, for the sake of all, shall be 
Made good by the contribution of all." Speaking of the right of 
" eminent domain," the same learned writer on the law of nations 
says, that when, in a case of necessity, the sovereign disposes of the 
rights of an individual, "justice requires that the individual be 
indemnified at the public charge ; and if the treasury is not able to 
bear the expense, all the citizens are bound to contribute to it ; for 
the burdens of the State ought to be supported equally, or in a just 
proportion." [Sec. 244, p. 112.] This great principle of equality 
and justice has been incorporated into the stipulations of our Federal 
and State constitutions, forbidding the government from taking 
private property for public, and with'out just compensation. 

Upon these fundamental rules, which regulate th% relation between 
government and citizen, the obligation to make good our loss in this 
transaction rests. We need not rely, however, upon the assertion 
of general principles, by elementary writers, for the doctrine has 
been embalmed in judicial decisions. In the case of De Bode vs. 
Regina, the Lord Chancellor asserted, that " it is admitted law that, 
if the subject of a country is spoliated by a foreign government, he 
ia entitled to obtain redress from the foreign government, through 
the means of his own government. But if, from weakness, timidity, 
or any other cause, on the part of his own government, no redress 



EEPOET OF THE SPEECH OF P. PHILLIPS, ESQ. 89 

is obtuiued from the foreigner, then he has a claim against his own 
country." [House of Lords, 1852. Eng. Law and Eq., vol. xvi., 
p. 23.] It will be perceived that this general liability is limited by 
the word " spoliated." To spoliate, is to rob, plunder. So that the 
redress would not apply to injuries received in legitimate warfare. 
It was upon this principle that it was insisted in the British Par- 
liament that if British subjects, whose debts and property had beea 
confiscated by the States, during the Revolution, did not receive 
indemnity under the treaty of 1783, "Great Britain was bound 
in honor to make them full compensation for their losses." [Debrett's 
Debates, quoted in vol. iii. Jefferson's Works, p. 373.] 

This principle, announced by the highest court in England as a 
maxim of law, has a wider reach than is necessary to be maintained 
in the adjudication of the claim now before the court, but no reflec- 
tion of my own, and no argument or authority adduced, leads me 
to doubt its entire correctness. 

By an examination of our numerous treaties, I find the distinction 
between acts of war and spoliations fully recognized, as they are 
also in the admiralty decisions — " spoUatio sed legalis capfio." By 
the 7th article, treaty with Great Britain, 1794, she stipulated to 
pay for losses and damages by reason of irregular or illegal captures 
made during the war. [Yolume of Treaties, p. 121.] So, in the 
treaty with Spain, 1802, she stipulated to "make compensation for 
the damages, losses, and injuries, in consequence of the excesses 
committed by Spanish subjects on American citizens during the war." 
[p. 198.] These may suffice, though we might, to the same point, 
quote the treaties with France, Denmark, the Two Sicilies, Texas, 
Mexico, and Peru. 

I have examined all our treaties with foreign nations, a list of 
which, with reference to such articles as bear upon the question 
before you, I now submit for the convenience of the court. I have 
found in that examinaiion no parallel to the treaty now before you. 
This is the first instance that our government has submitted the case 
of an individual to the arbitrament of a foreign power. So far as 



90 EEIG GENEKAL ARMSTKONO. 

I am informed, it is the first case iu the history of nations. Under 
the Treaty of Peace and Amity, in 1814, we agreed with Great 
Britain to refer the dispute, as to the Boundary established by the 
treaty of 1183, to two commissioners ; and, in the event of their 
disagreement, to refer it to " some friendly foreign state." [p. 220.] 
The commissioners thus appointed having disagreed, the terms of 
submission were fixed by a convention, 29th Sept., 1821. [p. 362.] 
Again, a difference having arisen, under the 1st article of the Treaty 
of Ghent, as to reclamations for slaves carried away by the British, 
it was, by the convention of 1818 [p. 248], agreed to refer the ques- 
tion to "some friendly sovereign or state. Both of these arbitra- 
tions involved mere questions of law, as to the true construction of 
written instruments. I will ask of your honors an examination of 
these cases, that you may see with what particularity the right of 
the parties to a full and free investigation was secured. In the 
latter case, after the question of law was decided, the claimauts, as 
in all other treaties providing for indemnity, were allowed to go 
before commissioners, and produce the evidence upon which they 
asserted their right. I do not understand that government is alone 
the embodiment of the power of the nation, but that it is also the 
representative of its justice. To require, through legislative enact- 
ments, that justice be done, and refuse to do justice itself ; to teach 
one thing by its precept and another by its example, would be to 
confound all morality, and deprive law of all sanction but force. 

We appeal, then, from the power of the government, by which 
we have been injured, to its justice, for redress. No question of 
indemnity or personal safety could have swayed the determination of 
the gallant Reid and his companions in arms. Without a thought, but 
for the interest and honor of their country, they freely perilled both, 
and, with victorious swords, carved out the noblest monument of 
our naval history. For our defence on land we look, in time of war, 
to our citizen soldiery. For our safety on the ocean, to our volunteer 
seamen The Armstrong and Fayal are the watchwords for our 
future. They are the lights which will lead our gallant tars to 



EEPORT OF THE SPEECH OF P. PHILLIPS, ESQ. 91 

victory. Let them not be dimmed by a denial of that governmental 
protection to which they are justly entitled. 

It may be, may please your honors, that in the zeal of advocacy 
I may have used expressions and exhibited a feeling not usual in 
judicial proceedings. If such has been the case, I trust your honors 
will pardon it for the cause itself ; for surely, if there ever was a 
case in which the cold atmosphere of the court should bo warmed 
with the glow of patriotism, it is the one which, on behalf of the 
claimants, I now submit for your consideration. 



92 BRIG QENEEAL AEMSTBONG. 



BRIEF OF THE U. S. SOLICITOR. 

The petition asks payment by the United States for the destruc- 
tion of the brig "General Armstrong" by a British fleet on the 
2Yth September, 1814, at the port of Fayal, in the neutral terri- 
tory of Portugal. Indemnity was demanded by Portugal of Eng- 
land at the time. Portugal having failed to procure it from Eng- 
land, demand was made on Portugal in 1835. Portugal refusing to 
pay, although earnestly pressed by the United States, it was finally 
agreed, by treaty concluded 24th February, and ratified 10th 
March, 1851, to submit the claim to arbitration. The King of 
Sweden was suggested by Portugal as the arbitrator, but the 
United States preferring the President of France, he was agreed 
upon as the arbitrator. On the 3d of November, 1852, he rendered 
an award in favor of Portugal, which the United States acknow- 
ledged as final and obligatory. 

The claim is now urged against the United States, on the ground 

1st. That the claim was improperly submitted to arbitration. 

2d. That the treaty was so improperly and unskillfuUy framed, and 
the arbitration so negligently and improperly managed by the Secre- 
tary of State, that the claim was thereby lost before the arbitrator. 

In support of this claim, the petitioners, by their counsel, have 
filed a brief, the points of which, to the number of thirteen, I prO' 
ceed to state and consider. 

First point — Charges that the Portuguese government acknow- 
ledged its liability to the United States, and cites the letter of the 
Marquis d' Aguiar, dated December 23, 1814, and enclosures, in 



BEIEF OF THE tJ. S. SOLICITOK. 93 

snpport of this allegation. (See p. 22, Senate Doc. No. 14, 1st 
Sess. 29tli Cong.) 

It is true that the enclosed letter to Lord Strangford, the British 
minister, charges the British squadron with violating the neutrality 
of Portugal in destroying the " General Armstrong," and demands 
an apology and indemnity both for the inhabitants of Fayal, and 
for the captain, crew, and owners of the " Armstrong," but it does 
not admit the liability of Portugal in any event. 

Second. Every administration has admitted the right of the 
claimant. The evidence relied on to prove this is supposed to be 
contained in the letters of instruction of Mr. Monroe, January 3, 
1815, p. 20 ; of Mr. Dickens, dated May 20, 1835, p. 23 ; Mr. 
Forsyth, October 2, 1835, p. 21 ; Do. July 2, 1836, p. 29 ; Do. 
September 21, 1836, p. 31 ; Mr. Webster, January 15, 1842, 
p. 40 ; Do. August, 1842, p. 42. Mr. Upshur, who succeeded Mr. 
Webster, and Mr. Calhoun, who succeeded him, declined action on 
the claim. Now, with respect to these letters, it will be found that, 
■with the exception of Mr. Webster, none of the secretaries express 
an opinion on the justice of the claim against Portugal — none of 
them indicate any examination of the claim ; and Mr. Webster, at 
page 4, merely says, he believes "its justness has not been denied," 
and, at page 42, that the claim is " regarded as just by the govern- 
ment, and will not be relinquished under the objections heretofore 
made." 

The first letter which instructs our minister to demand the 
indemnity from 'Portugal is that of Mr. Dickens in 1835. Mr. 
Monroe looked to Portugal to procure it from Great Britain ; and 
the* only expression in any letter prior to 1835, from our officers, 
which seems to look to Portugal, is to be found in Mr. Sumter's 
letter of 1st January, 1815, written without instructions from the 
State Department ; and this expression is not used as a demand, 
but occurs in commenting on the lettter of the Marquis d' Aguiar, 
where he expresses his satisfaction at the "indication " it affords " of 
a resolution to make or procure satisfaction to the injured Americans," 



94 BKIG GENERAL AKM8TB0NG. 

And it is to be observed, in reference to this allegation, both 
with respect to the United States and with respect to Portugal, 
that it is by no means proper to attempt to conclude them by what 
has been said by their respective officers on the representations of 
the claimants, when acting on behalf of the claimant in endeavor* 
ing to procure indemnity for them from others. 

Thus, with respect, first, to the Portuguese officials : The repre- 
sentations made by the Marquis d'Aguiar in his letter to Lord 
Strangford, in which he claims indemnity for the Americans on the 
ground that the British violated the neutrality of Portugal to 
destroy the American brig, and asserting, in strong terms, that the 
ground on which Captain Lloyd had justified himself at the time 
was a false pretence, were afterwards, when the claim was made 
against Portugal, set up to estop Portugal from denying that 
the British had been the aggressors ; and now, when the efifort is 
made to charge the Government of the United States, the repre- 
sentations made by the Secretary of State and other official persons, 
in the effort to procure indemnity from Portugal, are set up as 
admissions of the rights of the claimants ; and upon such grounds 
alone, the advocates of the claim have felt themselves warranted in 
saying, that the award made by the French emperor was made in 
total disregard of the facts. But when it is remembered that, at 
the several times when these representations were made by Porto- 
gal and by the United States, they were acting for the claimant and 
on his representations, and did not undertake to hear testimony 
and decide the points in advance of undertaking to urge the claim, 
they are not concluded by them at all when the claimant seeks in 
turn to make these governments responsible for his losses. 

So far from being conclusive evidence, these statements, being 
nothing in fact but the representations of the claimant himself, 
are not evidence at all. But these statements, not written by any 
one having any knowledge of the facts, and altogether on the sug- 
gestions of the claimants and for their benefit, are not only sought 
to be made evidence, but evidence so irresistibly conclusive as to 



BRIEF OP THE IT. 8. SOLICITOE. 95 

authorize the inference that the umpire who heard all the testimony 
committed a gross mistake in respect to the facts. 

This conclusion is far from being justified by this or any other 
testimony which the claimant has offered. Even on the case which 
the claimant has chosen to present, it is manifest that the decision 
of the French Emperor was in accordance with the facts and the 
law. In the protest which Captain Reid made on the 2Tth Sep- 
tember, 1814, at Fayal, he admits that he fired on the boats of 
the British, on the suspicion that they were approaching his vessel 
for a hostile purpose — a suspicion he had no right to indulge, and 
which did not authorize the commencement of hostilities in a neu- 
tral port. (See the case of the Anne, 3 Wheat. 435.) When it 
is considered, too, that the British commander declared at the time 
that the attack of the Armstrong was made " without the slightest 
provocation," and " that the neutrality of the port which he had 
intended to respect had been thereby violated," there is no doubt 
that the Armstrong was the aggressor. It became so, perhaps, 
under the honest conviction of the captain, that the approach of 
the boats from the English squadron was made with a hostile pur- 
pose. But that circumstance alone was insufficient to justify him 
in proceeding to violence. The English squadron had the same 
rights in the harbor which he had, and might send their boats 
ashore at night without being subject to questions from him. 

And when we have not only the statement of Captain Lloyd, 
that the boats did not approach the brig with a hostile purpose, 
and the depositions of the officer in command, and others in the boat, 
testifying positively that they approached without any hostile pur- 
pose, can we hesitate in believing that such was the fact, when not a 
single circumstance is related by the officers and crew of the brig 
which conflicts with this statement ? It is no doubt true that Cap- 
tain Reid thought otherwise ; but his opinion cannot weigh against 
testimony not only positive on the point, but entirely unimpeached. 

Third. Says prosecution of the claim renewed by Mr. Clay- 
ton, and peremptory demand made. 



98 BRia GENEKAL MlMSTRONG. 

He did not, therefore, consult with the claimants, when he entered 
ofiSce, as to the course he thought proper to taV.e to re-establish our 
amicable relations with a foreign government ; and the Senate of 
the United States approved his course by ratifying the treaty. It 
was peculiarly proper to submit the claim to arbitration. Portugal 
had not wronged us. This question was one of naked legal liability, 
with no circumstance for complaint against her. Should the 
United States have refused to submit such a question to a disinte- 
rested power, and used her superior force ? But though it is, per- 
haps, immaterial, the objectiou that he not only agreed to submit 
this claim to arbitration without the consent of the claimants, but 
against their protest, is not sustained by the proof. The proof (see 
Gov. Marcy's letter), shows, on the contrary, an acquiescence in this 
course ; and a circumstance which is conclusive of this is dwelt on 
as the principal burden of complaint in the conduct of this business 
subsequently — that is, the offer of a written argument, to be sub- 
mitted to the arbitrator. 

Eighth.— Th^i this treaty w^s submitted and ratified 10th March, 
without any possible knowledge of the circumstances, in proof 
of which Mr. Webster's letter of 19tli March, 1851, to Mr. Hadduck, 
is cited, and Senate Doc. 7, 1st sess. 3ba Congress. Captain Reid 
had notice of the proposed treaty in September, 1850. He had, 
therefore, all the time and opportunity necesse-ry to make known 
his wishes. 

The objections to the form of the treaty are frivolou& ; 

1. The 2d article recites, as a reason for submitting the claim to ar- 
bitration, that the parties could not agree on a qu^tion of publ'i^, law 
involved in it ; the claim was to be submitted, not the question of law. 

2. The objection, that the claim of the owners was not presented, 
is not well taken ; because, the treaty refers the claim to arbitra- 
tion as presented by the American Government, which included a 
claim for the vessel ; and the award was pronounced upon a claim 
relative to the American privateer " General Armstrong." 

3. It is not necessary to specify that the arbitrator shall hear 



BRIEF OF THE U. 8. SOLICITOB. 99 

and decide upon the law and the facts which shall be submitted by 
the claimants through their government — that is implied from the 
oflSce of arbitrator. 

ISinth. — That the Government refused to forward the written 
argument of the agent of claimants, because there was no provision 
in tie treaty for other argument than that contained in the corre- 
spondence. This refusal of the Secretary, and the absence of a pro- 
yision for argument by the treaty, seems to have been the chief 
ground relied on by the advocates of the claim in the Senate against 
the United States. This objection proceeds on the ground that the 
party was denied a hearing, and it was asserted that it could only have 
been in consequence of this defect in the treaty, or of the errone- 
ous construction of it, by which a hearing was denied the claimants, 
that the claim was lost, as the decision was so palpably against the 
weight of evidence. The misapprehension of the evidence I have 
already considered. If the court will compare the arguments in 
behalf of the claim, by Messrs. Hopkins, Clay, and other official 
personages, which were laid before the President of the French, with 
that presented by Mr. Reid to Mr. Webster, it will be perceived 
that nothing was lost in point of argument or good taste by sup- 
pressing Mr. Reid's production. 

Whilst Mr. Webster's competence for his position is not question- 
ed, it is insisted that by entering into an arrangement by which the 
facts and arguments developed in this voluminous correspondence 
were submitted to the arbitrator without further argument, he com- 
mitted an error so gross as to entitle the citizen to have recourse to 
Government when the adverse decision was made, because it is in- 
sisted that if Mr. Reid's argument had been read by the French 
President, he would certainly have decided otherwise. 

Mr. Bayard, at page 28 of the speeches in the Senate printed by 
the claimant, says : " In the diplomatic correspondence in reference 
to the transaction, can the honorable Senator jioint out to vie any 
time when the Fortttguese government took the ground that in point of 
Jactthefirst aggression was committed hi/ the General Armstrong V 



100 BRIG GENERAL AEMSTRONG. 

No, sir— no. The attention of our own representatives was ceref 
called to such a thing. No such question of fact was ever made ; no 
such investigation of the testimony was necessary, becaust the govern- 
ment of Portugal never intended to assume such a ground ^ but the 
Emperor of France, on an unargued case, gets rid of the sublet by 
asguraing a matter of fact which the whole testimony goes to deny." 
(See same remarks, p. 412, Congressional Globe, January 26, 1855.) 
It is surprising that the honorable Senator to whom Mr. Bayard 
referred did not point out to him that the Portuguese government 
had not only insisted that the " General Armstrong " was the aggres- 
sor, but had maintained that position in every reply given to our 
demand upon her to indemnify the claimants, begining with De Cas- 
tro's answer in 1843, which is the first response made to the demand 
on Portugal. (See the letter, p. 15, Doc. 53. See also Count 
Tojal to Ml- Hopkins, p. 33, September 29, 1849. Same to Mr. Clay, 
p. 49, March 9, 1850. Same, to same, p. 56, April 1850. Same to 
same, p. 61, May 15, 1850. Same to same, p. 15, July 6, 1850. 
Mr. Figaniere to Mr. Clayton, 27th April, 1850, p. 93. Same to 
same, July 9, 1850, p. lOT.) The replies of Mr. Hopkins and Mr. 
Clay, to be found in this document, to the letters addressed to them, 
also show that this position was taken by Portugal, and the argu- 
ment turns on that point in a great measure. It is therefore a great 
mistake to suppose, that the French President decided the case on 
a new and unargued point, started after the correspondence was 
closed. It will be found also that Mr. Reid's argument, which Mr, 
Webster refused to send to France, adds nothing to those embraced 
in the protocol submitted to the Emperor, which, it appears by let- 
ter to Mr. Hadduck, included all the correspondence. 

Tenth. — That the arbiter chosen was the Prince-President, and 
before the award was delivered he became Emperor, contrary to 
the treaty stipulations. The treaty merely stipulated for the 
reference to the " sovereign potentate or chief of some friendly 
nation who shall be chosen by the two high contracting parties." 
The evidence shows that the award was rendered while Louis 



BRIEF OF THE U. 8. SOLICITOK. 101 

Napoleon was Frince-President, and the minister of the United 
States was notified of the fact during the presidency. (See Senate 
Doc. No. 24, 32nd Cong. 2d sess.) The fact that copies of the 
award were not received till after the Prince-President had assumed 
a new title, cannot affect the validity of the award, any more than 
if he had died in the meantime, and the award had been certified 
by his sjjccessor in office. 

Eleventh. — Claimants protested when the award was made known 
to them ; but Secretaries Everett and Marcy informed them that it 
rv^as conclusive. 

Twelfth. — The award does not decide any question of public law, 
ind therefore does not comply with the terms of the treaty. (This 
objection answered under point eight ; see also thirteen.) Misstate- 
jaents in the award, Portuguese arguments adopted, and inference 
ihat Portuguese had a hearing when denied to American (require 
JO answer.) 

Thirteenth. — Award contradictory. 1. Charges violation of 
aeutraliiy on both belligerents. (This was true.) 2. Weakness 
of Portuguese power at Fayal, and Captain Reid's own resort to 
arms. These are two independent and distinct grounds for exempt- 
ing Portugal from liability, which are not inconsistent with each 
other. One, that the local officers were not appealed to in proper 
time ; and the other, that when appealed to, they had not the 
power to protect the American brig. 

The denial, by the claimants, that the first aggression proceeded 
from the brig, has been considered above. But the fact stated 
and held to be equally conclusive by the award, that the weakness of 
the Portuguese garrison at Fayal rendered all armed intervention 
impossible, is recognized as true by Captain Reid in his protest. 
(See p. 5, Doc. No. 14.) But whilst the fact is admitted, the law 
is controverted, and it is maintained that Portugal is bound to 
indemnify the owners, &c., of the brig, although they were unable 
to protect her. 

This doctrine asserted by Messrs. Hopkins and Clay, and the 



100 BKia GENERAL AEMSTRONG. 

No, sir — no. The attention of our own representatives was nevef 
called to such a thing. No such question of fact was ever made ; no 
such investigation of the testimony was necessary, becaust thsgovem- 
ment of Portugal never intended to assume such a ground; btii the 
Emperor of France, on an unargued case, gets rid of the subject by 
asguraing a matter of fact which the whole testimony goes to deny." 
(See same remarks, p. 412, Congressional Globe, January 26, 1855.) 
It is surprising that the honorable Senator to whom Mr. Bayard 
referred did not point out to him that the Portuguese government 
had not only insisted that the " General Armstrong " was the aggres- 
sor, but had maintained that position in every reply given to our 
demand upon her to indemnify the claimants, begining with De Cas- 
tro's answer in 1843, which is the first response made to the demand 
on Portugal. (See the letter, p. 15, Doc. 53. See also Count 
Tojal to Mr Hopkins, p. 33, September 29, 1849. Same to Mr. Clay, 
p. 49, March 9, 1850. Same, to same, p. 56, April 1850. Same to 
same, p. 61, May 15, 1850. Same to same, p. 15, July 6, 1850. 
Mr. Figaniere to Mr, Clayton, 27th April, 1850, p. 93. Same to 
same, July 9, 1850, p. 107.) The replies of Mr. Hopkins and Mr. 
Clay, to be found in this document, to the letters addressed to them, 
also show that this position was taken by Portugal, and the argu- 
ment turns on that point in a great measure. It is therefore a great 
mistake to suppose, that the French President decided the case on 
a new and unargued point, started after the correspondence was 
closed. It will be found also that Mr. Reid's argument, which Mr. 
Webster refused to send to France, adds nothing to those embraced 
in the protocol submitted to the Emperor, which, it appears by let- 
ter to Mr. Hadduck, included all the correspondence. 

Tenth. — That the arbiter chosen was the Prince-President, and 
before the award was delivered he became Emperor, contrary to 
the treaty stipulations. The treaty merely stipulated for the 
reference to the " sovereign potentate or chief of some friendly 
nation who shall be chosen by the two high contracting parties." 
The evidence shows that the award was rendered while Louis 



BRIEF OF THE U. 8. SOLICITOE. 101 

Napoleon was Prince-President, and the minister of the United 
States was notified of the fact during the presidency. (See Senate 
Doc. No. 24, 32nd Cong. 2d sess.) The fact that copies of the 
award were not received till after the Prince-President had assumed 
a new title, cannot affect the validity of the award, any more than 
if he had died in the meantime, and the award had been certified 
by his successor in office. 

Eleventh. — Claimants protested when the award was made known 
to them ; but Secretaries Everett and Marcy informed them that it 
ivas conclusive. 

Twelfth. — The award does not decide any question of public law, 
tnd therefore does not comply with the terms of the treaty. (This 
objection answered under point eight ; see also thirteen.) Misstate- 
Jients in the award, Portuguese arguments adopted, and inference 
ihat Portuguese had a hearing when denied to American (require 
JO answer.) 

Thirteenth. — Award contradictory. 1. Charges violation of 
Jieutraliiy on both belligerents. (This was true.) 2. Weakness 
of Portuguese power at Fayal, and Captain Reid's own resort to 
arms. These are two independent and distinct grounds for exempt- 
ing Portugal from liability, which are not inconsistent with each 
other„ One, that the local officers were not appealed to in proper 
time ; and the other, that when appealed to, they had not the 
power to protect the American brig. 

The denial, by the claimants, that the first aggression proceeded 
from the brig, has been considered above. But the fact stated 
and held to be equally conclusive by the award, that the weakness of 
the Portuguese garrison at Fayal rendered all armed intervention 
impossible, is recognized as true by Captain Reid in his protest. 
(See p. 5, Doc. No. 14.) But whilst the fact is admitted, the law 
is controverted, and it is maintained that Portugal is bound to 
indemnify the owners, &c., of the brig, although they were unable 
to protect her. 

This doctrine asserted by Messrs. Hopkins and Clay, and the 



102 



BEIG QENEK&.L AEMSTKONG. 



claimants, dogmatically, is unsustained by authority. Against it 
the Portuguese ministers, in the letters above cited, refer to 
numerous authorities, and maintain their position by great force 
of argument. (See particularly Mr. Figaniere to Mr. Clayton, 
p. 101, July 9, 1850. See also the speeches of Senators Fessendea, 
404-'5, 645 ; Dawson, 409 ; Stuart, 403, in Congressional Globe, 
vol. 30 ; also the speech of Senator Pearce, of Maryland, in vol. 
31, p. 158, and quotations therein from Wheaton's Elements of 
International Law, directly in point.) 

It is contended, also, that the duty of a neutral extends only to 
the instrtution and prosecution of proceedings for restoration of the 
specific property. Captain Reid having set fire to his own vessel, 
he put it out of the power of Portugal to institute any proceedings 
for this purpose, or in any way to try judicially the controversy as 
to the first aggression. (See Wheaton's Elements, pp. 491-8.) 

On their own showing, it is plain that the claimants had no 
fight to indemnity from Portugal. 

If it were otherwise, and on the weight of the evidence novr 
submitted, the court should be of opinion that the arbitrator, to 
whom the evidence on both sides was submitted, had decided 
against law and evidence, the award is nevertheless conclusive. 
(Boston Water-power Co. vs. Gray, 6 Met. 131.) 

Nor would it be less conclusive if the court should be of opinioo 
that the imputations upon Mr. Webster's management of the case 
were well founded. The doctrine that the government must pay 
such individual losses as may be supposed to result from the incom- 
petency, negligence, or bad management of officers in the conduct 
of public affairs, is inadmissible ; no such pretension was ever set 
up before. (See opinion of Attorney-General Cushing, on appli- 
cation of the Peruvian government for indemnity for neglect of duty 
by marshal of California.) The allegation that the payment of the 
other claims was a bonus for the submission of this to arbitration, 
is an attempt to show a consideration. But if in point of fact the 
United States had entered into the arbitration in consideration of 



BEIEF OF THE n. 8. SOLIOITOE. 103 

such payment, the payment was to private claimants, and the 
arbitration was not a release of Reid's claim. 

This effort to put this claim on the footing of the claims for 
French spoilations, is considered and answered by Mr. Benjamin, 
page 537, Congressional Globe, February, 1855 ; who shows also 
conclusively, that if every allegation made in support of the claim 
was fully sustained, it is wholly untenable, and that the allowance 
of it will be followed by most mischievous consequences. 

The act of 1834, donating $10,000 to the captain and crew- 
referred to by Mr. Fessenden and others, shows that Congress has 
already recognized their gallantry appropriately ; and when it is 
recollected that the brig was fitted out to carry on privateering as 
a business speculation, I think that recognition sufficient. 

But whether sufficient or not, is not here properly to be con- 
sidered, as this claim ought to be decided on its legal merits, 
without regard to the gallantry displayed by the officers and crew 
of the " General Armstrong " at Fayal. 

The heroic commander and his crew are justly entitled to the 

honor and gratitude of the country, all admit ; but the recital of 

that honorable claim ought not to be mixed up with the argument 

on a claim for money dependent on legal considerations, and 

involving principles which ought to be decided without respect to 

persons. 

M. BLAIR. 



104 BRIG GENERAX ARMSTRONG. 



Tdbsdat, 27th November. 

Mr. Blair, the solicitor for the Government, having concluded his 
argument yesterday, 

Charles O'Conor, Esq., for the Claimants, addressed the Court 
as follows : 

May it please the Court, 

The claim now presented for adjudication may be placed 
upon several distinct grounds. 

In the first place, we contend that the General Armstrong was 
employed by her officers and crew in the service of the United 
States, and against the public enemy, under such circumstances that, 
on being advised of the facts, and of the great benefit which 
resulted therefrom to the country, it became the government, as a 
matter of equity, to adopt the act, and to idemnify the parties 
against the expense incurred. 

Our second general head embraces the following elements. The 
General Armstrong, whilst lying in the Port of Fayal, was entitled 
to absolute protection from the Portuguese government. That 
protection was not afforded ; in violation of the neutrality of that 
port, she was destroyed by the forces of a British squadron ; and 
for this delinquency on the part of Portugal, her owners had a 
perfect right, by the law of nations, to be fully indemnified. The 
owners had themselves no legal capacity to prosecute this claim 
directly ; but, on establishing its validity, they were entitled to 
redress through the action of their own government against that of 
Portugal. The United Slates, accordingly, investigated the claim 
decided in favor of its justice, assumed the control of it, and 
entered upon the duty of enforcing it. Instead, however, of 
prosecuting it to an issue by legitimate means, the government 
receded from its duty in that respect, and actually extinguished the 
claim, whereby a right has accrued to the owners to demand 
compensation from the public treasury. 



SPEECH OF CHARLES o'cONOK, ESQ. 105 

Each step in the argument by which these conclusions are 
arrived at, seems to us quite clear and intelligible, but the learned 
Solicitor for the government has advanced a great variety of 
objections, and it is principally in answering these that we shall 
engage the time and attention of your Honors. 

The absence of precedents has been urged against us, and we 
have been called upon to produce from the books of the common 
law, some instance of an action brought, a trial had, and a 
judgment rendered for the plaintiff upon a claim like the present.. 
We cannot comply with this unreasonable demand ; but neither 
can we admit that our claim should suffer on that account. The 
nation itself is here a defendant, responding to the claim of a 
private suitor for reparation of injuries sustained— a thing unparal 
leled in jurisprudence. The Court itself is the first-born of a new 
judicial era. Consequently, we cannot hope to find among the 
narrow rules and practical formula which ordinarily govern in 
determining mere questions of property between citizen and citizen, 
the lights which are to guide its judgment. As a judicial tribunal, 
it is not merely new in the instance: it is also new in principle. 
So far as concerns the power of courts to afford redress, it has 
heretofore been fundamental that the Sovereign can do no wrong. 
This court was 'erected as a practical negative upon that vicious 
maxim. Henceforth our government repudiates the arrogant 
assumption, and consents to meet at the bar of enlightened justice 
every rightful claimant, how lowly soever his condition may be. 

Whence is such a tribunal to extract the principles by which its 
action is to be governed — by which it shall test and allow or 
disallow the claims which may come before it ? In ordinary cases 
of specific rights declared by some particular statute or regulation, 
its path may be easy. But in those extraordinary cases which are 
dependent upon principles not hitherto falling within the judicial 
authority, which have never been enforced against the State, and 
which, consequently, courts have never declared in their judgments 
or illustrated in their opinions, difficulties may be encountered at 



-106 BRIG GENERAL ARMSTRONG. 

the outset To meet and surmount these, if they exist, is one of 
the high and responsible duties devolved upon your Honors, as 
pioneers in this newly opened chapter of juridical science. 

Though without exact precedents, you are not wholly without 
chart or compass. A reference to the origin and growth of 
jurisprudence, in instances the most analogous, will furnish a 
sufficient guide. 

Rights and their correlative duties are divided into two classes, 
that is to say, the perfect and the imperfect. The only difference 
between these classes is in external circumstances — intrinsically or 
morally there is none. Perfect rights are those which may be 
enforced by established remedies ; perfect duties are those the 
performance of which may be coerced : a right of imperfect obligation 
is one for the enforcement of which no remedy is provided. Jurispru- 
dence, as administered by human tribunals, deals only with the means 
of enforcing rights which are recognized as perfect: but like all moral 
sciences it is capable of improvement. As the general mind of a 
nation advances in that freedom which is the result of increased 
knowledge, the legislative authority will constantly enlarge the 
sphere of action assigned to jurisprudence, and increase its power 
of establishing justice. Jurisprudence is only the means, justice is 
the end. Jurisprudence is of human origin : justice is an attribute 
of divinity; pre-existent of all created things, eternal and immu- 
table. Its authority is not derived from any human code, cither of 
positive institution or of customary reception; its decrees are found 
ia the voice of God speaking to the heart which faith has purified 
to receive and reason enlightened with capacity to understand. 

When thus aided by the legislature, jurisprudence is enabled to 
enlarge the circle of perfect rights, by furnishing from time to time, 
new instrumentalities for enforcing justice. Est boni judicis ampli- 
are jurisdictionem, is a sound and unexceptionable maxim ; for the 
exercise of jurisdiction is but giving to men in a practical form, tho 
behests of divine justice, and enforcing their observance. This is 
well illustrated by the rise and progress of the English law. In 



SPEECH 07 CHAELE8 o'cONOK, ESQ. 107 

the lofty growth of equity, by the side of its stunted rival, the 
comraon law, we see by what means rights founded iu justice and 
conscience, but not yet recognized by positive law, may rise in 
grade, acquire recognition, and become enforceable by adequate 
remedies. In that example, this court will find the best lighta 
for its government. In our early law-books, we find it urged, and 
admitted, that "Every right must have a remedy." But Lord 
Chief Justice Yaughan stripped this common-place of all its force, 
by replying " Where there is no remedy there can be no right." 
The common law judges of England, always acted upon the princi- 
ple embodied in this remark. From their rigid adherence to it, 
arose the necessity of a distinct jurisdiction— the power of equity 
to compel an observance of those duties which conscience enjoined, 
but which positive law had provided no means of enforcing. 

The ordinary courts of law, are not created to declare or enforce 
justice in the abstract, or justice in general. (See note a. to De 
Bode vs. Regina, 13 Queen's Bench R. 381.) Their function is to 
effectuate such human rights only as, in the existing stage of its 
progress, jurisprudence is enabled to bring within the sphere of its 
remedial forms, leaving all others to be sought by entreaty, and 
yielded by free-will. The judge is obliged to dismiss every claim, 
however just, for enforcing which he cannot find an appropriate 
writ iu the register; and, consequently, the regret of the Bench 
and a deep censure upon the defendant, is often expressed in the 
same breath with a judgment denying the remedy sought. 

This was strikingly exempUfied in the case of Jackson vs. Bar- 
tholomew, 20 Johnson's Reports, 28. An honest farmer seeing his 
neighbor's wheat-stack on the verge of being consumed by fire iu 
the owner's absence, voluntarily assumed the task of saving it, 
and did so at a slight cost. Reimbursement being churlishly refused, 
he brought an action in a justice's court, and the rustic magistrate, 
not learned enough to know that legal policy sometimes stifles the 
voice of conscience, decided in favor of the plaintiff. The defend- 
ant appealed; and, when reversing the decision on the ground that 



.108 BRIG GENERAL ARMSTRONG. 

for a service, however beneficial, rendered without a previous 
request, no action lay, the Supreme Conrt of New York denounced 
the defendant's conduct as " most unworthy." In this censure all 
honest men must concur. No one could doubt that had the owner 
of the wheat been present at the moment of peril, he would have 
requested aid, and promised compensation. An honest man would 
have conceded this, ratified his neighbor's kind intervention, and 
promptly repaid his expenditure; but selfishness saw that this was 
a duty of imperfect obligation, and a callous conscience dishonorably 
refused to perform it. 

The equity jurisdiction of Great Britain has been considered as an 
anomaly in legal science. Continental jurists seem never to have 
comprehended it — though it could easily be shown that no civil 
society ever existed in which there were not some remediable forms of 
injustice which Lex non exade definit sed arlitrio honi viri permittit. 
(Story's Eq. Jur. §§ 8. 9.) Institutions which are novel in form, 
will always excite criticism and opposition, however harmonious 
they may be, in principle, with what has gone before. But the 
difficulties which may beset the path of this court, at the outset of 
its high career, cannot be greater than those which surrounded the 
early English chancellors in their efforts to mitigate the rigor and 
supply the imperfections of positive law. They had no judicial 
precedents to guide them in stilling the waves of contention; the 
great unwritten law of natural justice, alone governed. They 
claimed to deal with matters binding in conscience only, and the 
power to enforce its dictates. At every step they had to con- 
tend with the argument now urged against us, that there was no 
legal remedy, and consequently the law left it optional with the 
defendant how to demean himself in the premises. As in the pre- 
sent case, the law — the law was dinned into the ears of the 
court by the advocates of wrong, with loudness and perti- 
nacity; but the clamor was unavailing. Without aid from pre- 
cedents, but guided by principles, the courts grappled with, 
and mastered the devices of iniquity. Justice ! Equity 1 Con- 



SPEECH OE CHARLES o'cONOE, ESQ. 109 

Science! words without definition, and incapable of being defined, 
alone prescribed their jurisdiction, and neither legal or politi- 
cal science had any further connection with the new cases 
arising before them, than to aid in solving the question how far 
state policy would admit of right being done to the injured suitor. 

To the precise extent which a due regard to public policy would 
admit, the masters of equity encroached upon the territory of 
imperfect duties, making firm land wheresoever they trod. Thus, 
they gradually redeemed from the outlawry to which ignorance or 
inexpertness had consigned them, a large class of imperfect rights, 
and enforced a large class of duties before deemed imperfect — 
because not enforceable — but which were always obligatory in the 
eyes of God, and were always voluntarily performed by honest men. 
Prior to the institution of this Court, all rights, as against the 
nation, were imperfect in the legal sense of the term — every duty 
of the nation was a duty of imperfect obligation. There was no 
judicial power capable of declaring either — no private person pos- 
sessed the means of enforcing the one, or coercing the other. These 
rights may be deemed still to remain, in one sense, imperfect ; for 
the decrees of this Court cannot be carried into execution by 
authority of the Court itself. But effectual progress has been 
made toward giving form and method to the administration of jus- 
tice between the nation and the individual. This Court enables 
the latter to obtain an authoritative recognition of his right. No 
more is needed; for in no case can a State, after such a recognition, 
withhold payment and yet retain its place in the great family of 
civilized nations. The ordinary jurisdiction of the Court bears a 
strong resemblance to the narrow cognizance at common law; but 
its extraordinary jurisdiction over " all claims which may be 
referred to it by either house of Congress " extends its power to 
the utmost limits attainable by juridical science in its fullest develop- 
ment. In this aspect, its dignity and importance as a governmental 
institution cannot be too highly appreciated. As a means by which 
rightful claims against the government may be readily established, 



110 BRIG GENERAL ARMSTRONG. 

and those not founded in justice promptly driven from the portals 
of Congress, it must exercise a most healthful influence. But we 
are authorized to look higher than the mere convenience of suitors^ 
and the dispatch of public business. Enlightened patriotism will 
contemplate other and more important consequences. Caprice can 
no longer control. Here equity, morality, honor and good con- 
science must be practically applied to the determination of claims, 
and the actual authority of these principles over governmental 
action ascertained, declared and illustrated in permanent and abid- 
ing forms. As step by step, in successive decisions, you shall have 
ascertained the duties of government toward the citizen, fixed their 
precise limits upon sound principles, and armed the claimant with 
means of securing their enforcement, a code will grow up, giving 
effect to many rights not heretofore practically acknowledged. In 
it will be found enshrined for the admiration of succeeding ages an 
honorable portraiture of our national morality, and a full vindica- 
tion of the eulogium recently pronounced upon our people by the 
highest authority in the parent State. " Jurisprudence," says Lord 
Campbell, in the Queen vs. Millis, 10 Clarke Sf F'melly, 711, " is 
the department of human knowledge to which our brethren in the 
United States of America have chiefly devoted themselves, and in 
which they have chiefly excelled." 

Whilst we assert that this Court does not stand super antiquas 
vias in anything which concerns mere procedure, and, consequently, 
that the call for judicial precedents is idle and unreasonable, we 
admit that cases arising here must be determined in conformity 
with established principles. It has been truly said, that " you 
have no power to invent rights,'^ but it must be conceded that you 
have express power to invent remedies. The seventh section of the 
act creating the court provides that you shall prepare to be laid 
before Congress for enactment, the requisite bill or bills in those 
cases which shall have received your " favorable decision, in such 
form as, if enacted, will carry such decision into effect." This, 
according to Mr. Justice Ashhurst, in Pasley vs. Freeman, 3 T. R. 



SPEECH OF CHAELES o'cONOR, ESQ. HI 

63, is the precise method of dealing with cases which are without 
precedent in the known practice of judicial tribunals. 

We agree that you have jurisdiction only over that class of cases 
which are claims properly so called. The applicant for bounty must 
go elsewhere. Grace and favor, if it is ever proper to bestow them, 
must be bestowed as heretofore, by Congress, without your inter- 
ference. But claims — claims which would be entitled, as betweeu 
individuals, to recognition and enforcement according to known 
principles of law, or upon known principles of equity, are to be vin- 
dicated and established by this court. "We assert no more than 
this, except so far as the nature of things may warrant a practical 
distinction between a sovereign state and an individual. In this 
way the sphere of equity may, as against the government, admit of 
some expansion. In a case like that of the wheat-stack, cited from 
Johnson's Reports, a court constituted as this is, could find no diffi- 
culty in enforcing the claim against the government. If a large 
quantity of public property, or any other great public interest, were, 
at this moment, in danger of being sacrificed, under circumstances 
rendering it impossible to apply to the Executive for instructions or 
for the means of saving it, we insist that a reference of the volun- 
tary salvor's claim would enable this court, as keeper of the nation'.s 
conscience, to award remuneration. We say that Government 
could not, any more than the owner of the wheat-stack, conscien- 
tiously withhold compensation in such a case ; and that, if the claim 
should be sent here, this court would be bound to enforce it. State 
policy may forbid that equity should go so far in a case between 
individuals as to compel a man to make a request, as it were nunc 
pro tunc. But why may not government ascertain, through a 
proper judicial investigation, the existence and binding force in 
equity of a claim upon it, which, in a private case, no honest man 
would hesitate to acknowledge — which no gentleman could repu- 
diate without dishonor ? 

When war was declared in 1812, this republic was yet in the 
infancy of her power. We could scarcely be said to possess either 



112 ' BKIG GENERAL AEMSTKONG. 

an army or a navy. Though, in the achievement of our indepen- 
dence we had won high renown, yet physical strength, the only attri- 
bute which can enforce respect for the rights of a nation, was not 
oars to any great extent, and was not imputed to us by any. Our 
commercial marine had often been plundered with impunity. Even 
our ships of war had not been exempt from search and impressment. 
"War with France, our early friend, had failed to protect us from 
insult, and it was in an absolutely necessary defence of our exis- 
tence as an independent state, that we were compelled to ven- 
ture upon hostilities with the greatest power of ancient or modern 
times. The invasion of our neutral rights in navigating the ocean 
induced the measure, the vindication of them was its immediate 
aim and object. Annals of Thirteenth Congress pp. 1431, — 1419 
to 142t. 

Our naval reputation at that time may be judged by the romantic 
temerity with which the Alert, a pitiful little English gun-boat, in the 
first month of the war bore down upon the Essex, a 32 gun frigate. 

Perhaps we seized upon an opportune moment, for Britain was 
engaged in an European war which tasked her utmost energies. 
Even witb this advantage on our side, the contest was very 
unequal ; but, when at length, the gigantic power of Napoleon was 
prostrated, what was our condition ? The patroness of France 
under her restored dynasty, the foremost in a holy alliance of all 
monarchical Christendom, with her thousand ships, and her victo- 
rious legions relieved from every other occupation, Britain stood 
prepared to " crush us at a blow." Such, all will remember, was 
the language of the times ; and naught seemed to interpose 
between her resolve and its execution but a brief time — as much as 
might be needed to conquer intervening space. 

Her force was soon felt. The sacred Capitol of our Union — the 
spot consecrated to liberty by the immortal Washington — fell into 
the hands of her mercenaries. The thunder of her vauntings was 
heard along our coasts, and at what vital point her apparently 
resistless force was next to fall upon us, none could tell. 



SPEECH OF CHARLES o'cONOE, ESQ. 113 

At tliat critical juncture (September 9th, 1814) the General 
Armstrong set sail from New York upon a cruise designed to harass 
our powerful antagonist. On the seventeenth day out she cast 
anchor in the neutral port of Fayal, for the purpose of taking in a 
supply of water. Soon after, on the same day, a British squadron, 
under the command of Captain Lloyd, consisting of a seventy-four 
gun ship, a frigate of thirty-eight guns, and a sloop of war carry- 
ing eighteen guns, entered that port for tlie same purpose. Two 
conflicts took place between the American privateer, and a body 
of armed men sent in boats from the British fleet to assail her, 
which terminated in the destruction of the privateer. 

This violation of neutrality, and the consequent loss of our pro- 
perty, entitled us to demand compensation as claimants upon the 
justice of Portugal. 

Questions of law have been raised as to this asserted liability of 
Portugal. These we must dispose of in the first place. 

It is said, that Captain Reid, having himself resorted to violence, 
and struck the first blow, must be deemed the aggressor, however 
apparent it may have been that such resort was necessary to save 
his vessel from capture. It is also said, that the obligation of a 
neutral to make compensation in such cases is not absolute ; that 
if a neutral, at the time and place of the aggression, employs all 
the means in his power to prevent it, this is all that can be 
required. Of course, in this connection, it is conceded that if there 
be negligence in providing, at such time and place, the amount of 
defensive force which might, under all circumstances, be reasonably 
required, or if there was a failure in the due and effectual employment 
of such force, from pusillanimity, gross ignorance, or want of skill 
on the part of the neutral, responsibility might ensue. What sin- 
gular questions for discussion between nations would arise in the 
investigation of these points! In following out to its consequences 
this idea of limiting national responsibility within the compass of 
national power, it is said that property unlawfully seized by a third 
power, within the territory of a neutral, must be restored by the 

9 



114 BEIG GENERAL ARMSTRONG. 

courts of the latter, in case it should come within their reach; bat 
that when the property is destroyed, or for any other reason cannot 
be thus subjected to legal process, the neutral is only bound to use 
bis best exertions to procure compensation. 

To illustrate what is meant by this employment of his best 
exertions, it is argued that a neutral is not bound to go to war in 
such a case ; that it would be unreasonable, and, consequently, 
unjust to require a feeble State to involve itself in hostilities with a 
powerful aggressor merely for the sake of obtaining justice for the 
stranger; that friendly negotiation and urgent entreaty for compen- 
sation constitute the whole duty of a weak neutral State, whose ter- 
ritory has been unlawfully converted into a theatre of war by a 
powerful belligerent. 

Notwithstanding their palpable absurdity, these doctrines arc 
gravely insisted on. From a perusal of the correspondence between 
the two governments, it might be thought that some of the able and 
patriotic negotiators who, from time to time, sought the enforce- 
ment of the claim against Portugal, conceded these doctrines; for they 
condescended, in arguing against them, to discuss the evidence, 
relying, as they well might, upon its insufficiency to excuse Portugal, 
even if the rule of law was as contended for. We shall adopt the 
same line of argument ; but we protest, at the outset, against any 
such inference as against us. We do not acquiesce in any of these 
doctrines. They are founded in the grossest misconception of pub- 
lic law, and a singular blindness to the plainest dictates of common 
sense. We proceed to prove this, seeking thereby to establish that 
—in point of law— our claim was perfectly valid against Portugal, 
until that government was released by the acquiescence of the 
United States in Louis Napoleon's award. 

England conld in no event be held responsible to the United 
States or to the aggrieved parties. As between belligerents them- 
selves, it is the right of each to make war upon the other, his sub- 
jects and property, wheresoever he can find them. "A capture 
made within neutral waters is, as between enemies, deemed to all 



SPEECH OF CHAKLES o'cONOE, ESQ. 115 

intents and purposes rightful. It is only by the neutral sovereign, 
that its legal validity can be called in question. The enemy has no 
rights whatever ; and if the neutral omits or declines to' interpose 
a claim, the property (so captured,) is condemnable, jnrt belli, to 
the captor." "This," (says the Supreme Court in The Ann, Zd 
Wheaton's R. 435) "is a clear result of the authorities, and the doc- 
trine rests on well established principles of public law." True it is, 
that Great Britain was responsible over to Portugal for any sum 
which she might be obliged to pay — and hence, no doubt, the 
British influence in procuring Louis Napoleon's award — but that 
was a question altogether between Portugal and Great Britain, 
We had no claim whatever against the latter. 

It is affirmed, on all hands, that belligerents are bound to abstain 
from hostilities within neutral territory, and that any violence, 
except in self-defence, committed by them within such territory is 
unlawful. It is unlawful as between the neutral and each of the 
belligerents. The injured belligerent may claim indemnity from the 
neutral, the neutral may demand reimbursement from the aggressor. 
We refer to the case last cited, and also to 1 Wheaton 405 ; 4 
Wheaton 52; Ihid. 298. 

The rule requiring a total abstinence from hostilities within 
neutral territory, has, of course, the same limitation which is 
imposed by reason and necessity in every other case where violence 
is prohibited. The right of self-defence is rightly called the first 
law of nature. The arm of the civil magistrate cannot always be 
extended to prevent injury to the citizen, and when it is not pre- 
sent for his defence, he is not bound to submit unresistingly to 
death or wounds. When the danger is imminent, and safety cannot 
otherwise be purchased, the assailed party may always defend him- 
self, repelling force by force. The same authorities which assert 
that a belligerent forfeits all claim to protection from a neutral 
sovereign by commencing hostilities within his territory, admit this 
right of self-defence. And this, let it be noted, is not the privilege 
of returning a blow ; that, indeed, is revenge or retribution not self- 



116 BRia GENERAL AEMSTKONG. 

defence. Self-defence must foresee, anticipate, and defeat the unlaw- 
ful design whilst only threatened or meditated. Nothing else is 
defence. Chief Justice Marshall says, in The Anne, 3 Wheaton 435, 
that "Whilst lying in neutral waters" a ship is "bound to abstain 
from all hostilities except in self-defenceP Again he says, that nc 
vessel in such waters "is bound to submit to search, or to account 
(to the belligerent) for her conduct or character.''^ In a case some- 
what analogous to the present, The Marianna Flora, 11 Wheaton, p 
1, Mr. Justice Story says, in reference to defensive force used bj 
the commander of a ship menaced by another, "He acted, in oui 
opinion, with entire legal propriety. He was not bound to fly or ta 
wait until he was crippled. His was not a case of mere remote 
danger, but of imminent, pressing, and present danger. He had 
the flag of his country to maintain, and the rights of his cruiser to 
vindicate." It will be seen, therefore, that Captain Reid's acts in 
defence of his vessel were lawful; that they involved no breach of 
duty on his part towards Portugal, and that they in no degree 
lessened the duty of Portugal to protect him. 

What is sometimes called local and temporary allegiance, but is 
more properly termed obedience, is due to every government from 
aliens and strangers sojourning within its jurisdiction. The neutral 
state forbids hostilities within its territories between the armies or 
navies of belligerents, precisely as the civil magistrate forbids 
violence between individual enemies. By his laws and regulations, 
he absolutely supersedes the law of nature, and promises absolute 
protection in return for obedience. We may admit the truism that 
neither men nor nations can go further in the performance of their 
obligations than the employment of their utmost ability. But an 
obligation like that under consideration is never, in itself, theoreti- 
cally, nor for any practical purpose, subject to any such limitation. 
A private man's obligations are no longer enforceable in fact, when 
his whole means of payment are exhausted ; but after that event, 
he remains charged with the residue of his indebtedness pi'ccisely in 
the same degree as before. Until relieved by death, or released by 



SPEECH OF CHAKLE8 o'cONOE, ESQ. Hf 

bankruptcy, he is still bound to his creditor. Poverty and weak- 
ness may plead for indulgence, but neither can rightfully demand a 
release. The obligation remains. So it is with nations: they must 
perform their duties or cease to exist. There is no bankrupt act 
for them; political extinction is their only refuge from the penalties 
of unredeemed responsibility. 

Although some crude remarks of publicists may be found afford- 
ing a slight pretext for the argument, it cannot be maintained 
that the duty of a sovereign to afford full protection to the stran- 
ger within his gates, whose presence he permits, is anything less 
than absolute, or that the duty in this respect of a weak nation is 
any less than that of a strong and powerful one. 

When a private individual breaks the peace and does an injury 
to another, the sovereign power subjects him, by due process of 
law, to mulcts and penalties. His whole estate, if necessary, is 
sequestered for the remuneration of the injured party. Precisely 
the same measure of retribution is to be meted out for the like 
offence when committed against persons or property, by a foreign 
nation. 

Belligerents are not permitted to fit out ships of war, or augment 
their force in the ports of a neutral; but all nations allow their 
ports to be visited by the vessels of those with whom they are in 
amity, for the purpose of obtaining those necessaries of life which 
are equally useful in peace or war. Therefore, it was entirely pro- 
per for the American privateer and the British squadron, to enter 
the friendly port of Fayal, as they did, to supply themselves 
with water. But it was the duty of both to preserve the peace 
while there, and that duty was enforced to the utmost against the 
privateer, by the Portuguese authorities. After the first attack 
upon the General Armstrong, and in anticipation of the second, 
Captain Reid sought the Governor's permission for thirty of his 
Eountrymen, then on shore at Fayal, to come on board and assist in 
the defence of his vessel. The application was peremptorily refused; 
And Louis Napoleon in his award, commends, as worthy of all 



118 BRIO GENERAL AKMSTKONG. 

praise, the act of the Governor in thus effectually preventing an 
augmentation of the Araerican force. We agree that this was 
performing precisely, and to the letter, the duty of Portugal 
towards England. But we insist, however excusable the Governor 
may have been, from want of power, that the supreme government 
of Portugal was bound effectively to have prevented hostilities 
against those who were restrained by its laws from employing their 
own means of self-defence. 

The learned solicitor asserted, that the Portuguese government 
was not bound to protect strangers, any more than it was bound to 
protect its own people. Perhaps it was not. It is the duty of every 
government to protect its own people, and, when violence has been 
committed upon them, to enforce redress from the wrongdoer to the 
whole extent of such wrongdoer's ability. The same duty exists to 
preserve the peace within neutral territory, between belligerent 
nations. The reason is obvious ; the local authority compels the belli- 
gerent parties to keep the peace, and it is therefore bound to protect 
them. This seems to us so plain, so obvious, that no argument is 
necessary to enforce it. Indeed, the general proposition is not denied ; 
we have only to combat an attempt to fritter it away in practice by 
subtle distinctions. The extent of the liability, upon the part of the 
neutral power, to furnish compensation from its own treasury, for the 
losses incurred in consequence of its failure to keep the peace within 
its territories, is alone disputed. If full reparation is not due to 
the stranger, what is he entitled to ? The attempts to answer this 
question are ludicrous! It is said that if a vessel is captured in 
neutral territory, and afterwards comes within the same territory, it 
should be restored to the original owner; but if it is carried off, 
and does not return within the neutral territory, then the neutral is 
not liable. If this is true, then the total destruction of property 
involves no liability at all, for the neutral cannot deliver up that which 
has ceased to exist. As violence cannot always be prevented, what 
is the duty of the neutral in those cases where destruction ensues ? 
The learned solicitor says, the nation whose territory has been 



SPEECH OF CHAULES o'cONOE, ESQ. 119 

invaded, is to remonstrate with the aggressor; it is to appeal to 
him in the name of justice, reason, and friendship, to make amends 
to the injured party. And it is said, if these means fail, the injured 
party can claim no farther redress. Can this be law ? The sove- 
reign to whom the application is made, is the unrighteous transgres- 
sor; he knows that the reparation sought is for his enemy. He 
knows also that he has onlv to refuse, and the obligation of his 
neutral friend will be satisfied. By a simple refusal, he can close 
the transaction, and settle the account for ever. If this were really 
the extent of the neutral liability, the whole notion of a right to 
indemnity would be the merest farce. 

We insist that the obligation of the neutral power is to prevent 
hostilities, if practicable ; and, if that be impracticable, then to 
make compensation for the injury sustained. 

The notion of limiting the duty to prevention or to the employ- 
ment of such force as may happen to be at the spot for that pur- 
pose, is extremely absurd. It can rarely be in the power even of 
the greatest States to maintain at every point of their territories a 
force adequate to prevent violations of their neutrality. Indeed, 
when the force exists, the local officer is not always justifiable in 
employing it. If the commander of a dozen British seventy-four 
gun ships, lying in one of our ports, where they had touched for 
provisions, should seize a Russian ship, refuse to surrender her to 
the Marshal, and, as Lloyd did at Fayal, threaten, in case of inter- 
ference with his capture, to bombard the town, and slaughter its 
inhabitants, would the local authorities be bound to plunge at once 
into the horrors of irregular war ? In most cases the force on the 
spot would be wholly inadequate to effective resistance. But when 
it happens otherwise, we doubt the expediency of such a resort. 
Vastly less mischief would result, in ordinary cases, from leaving 
the wrong to be redressed by the supreme power. Then, if war 
should come, it would be met with fitting preparation. The armed 
warrior, not the women and children of a peaceful town, would 
encounter its brunt. We deny that the Governor of the Azores 



120 BRIG GENERAL ARMSTRONG. 

could properly have employed his military force in open war npon 
the fleet of a powerful nation, which was not only the friend and 
ally, but, it may be said, the protector of his sovereign. Even if 
his force had been adequate, the act would have been rash and 
injudicious. It is quite clear that in such cases the local authori- 
ties should most generally submit to the violence, leaving it to the 
supreme government to apply the proper remedy. And it is equally 
clear that indemnity is the only remedial justice which can ordinarily 
be had. If the neutral state has any duty to perform, it is the pro- 
curement of such indemnity. 

In the obligations which thus rest upon neutrals, there is no dif- 
ference between strong and weak nations. We commonly say that 
in the eye of the law all men are equal. So, in international law, 
all sovereigns are on a perfect equality. Consequently, a state, 
however feeble, cannot maintain its rank and position in the family 
of nations, without performing its public duties. When it fails 
in this respect, it must necessarily fall exactly into the same con- 
dition as an individal engaged in trade, who, faihng to pay his 
debts, and to perform the duties of his station, loses all credit and 
position among his fellow-men. This doctrine is reasonable : no 
other would be tolerable. A feeble state has at its command a 
suitable remedy for every such case. When wronged by a power- 
ful nation, it may invoke the reprobation of mankind, by a proper 
exposition of the act. The force of opinion is great, and nations 
have been constrained to respect it in the worst of times. If this 
resort should fail, it may form an equal alliance with other states 
of its own class, or it may seek the protection of one more power- 
ful. If it can be supposed that none of those means would enable 
it to redeem its obligations, nothing can be clearer than that it 
should declare itself bankrupt, and relinquish its pretensions to 
sovereignty. 

To prove that for injuries to property sustained by a belligerent, 
within the territory of a neutral, from hostilities there unlawfully 
prosecuted against him by his enemy, the neutral sovereign is only 



SPEECH OF CHABLES o'cONOR, ESQ. 121 

bound to afford the measure of redress which may be within his 
ability,' your Honors are referred to the text of certain treaties 
between the United States, England, France, Russia, and Holland. 
We there find stipulations to the effect that each nation engages to 
" use its utmost endeavors to obtain from the offending party full 
and ample satisfaction for the vessel or vessels so taken," or to 
" protect and defend by all means in its -power the vessels, &c., and 
restore the same to the right owner." These treaties are relied upon 
as full evidence of the sense entertained by the great maritime states, 
as to the extent of the obligations of neutrals in the particular now 
under consideration. It is claimed that they are not merely strong, but 
decisive evidence of the jus gentiuvi. We admit the proposition in its 
broadest .extent. It only remains, then, to inquire what is meant 
by the " utmost endeavors" of a nation, or by the employment of 
" all means in its power." Our government is one party to these 
treaties. Do we, when promising to use our utmost endeavors and 
all means in our power, intend to say that we wilF humbly pray 
for justice, and earnestly expostulate against injustice ? Does this 
involve a complete exhaustion of all the means in our power ? And 
if, indeed, we are so weak and so degraded as this, is Great 
Britain — is powerful and martial France, with more than forty mil- 
lions of warlike subjects — equally so ? The small kingdom of Hol- 
land is also a party to these treaties. Surely these same words, in 
the same treaty, do not mean one thing as applied to one party, 
and a different thing as applied to the other party ? We respect- 
fully insist that the rule, as expressed in the text of our writers on 
international law, and in these treaties, means nothing less than 
that the neutral state is bound to obtain, or to make, restitution 
for every outrage committed upon friendly nations within its limits, 
peacefully, if it can, forcibly, if it must, 

A few words in Mr. Wheaton's comment upon these treaties, are 
thought to favor the doctrine of limited liability now contended for. 
In Mr. Lawrence's edition of the Elements of International Law, p. 
49T, the author says : " They were not bound to make compeu- 



122 BKIG G ENSEAL ARMSTPwOKG. 

sation, if all the means in their power were used and failed in their 
efiFect." But lie does not, by example or otherwise, give the least 
clue to his notions concerning the means which must be used by 
the " high contracting parties " in order to fulfill the obligation 
created by these words. Observing upon the jurisdiction over 
captures in neutral territory exercised by the Admiralty Courts 
of the neutral, he says it is " exercised only for the purpose of 
restoring the specific property, and does not extend to the infliction 
of vindictive damages, as in ordinary cases of maritime injuries." 
This sentence is the learned solicitor's leading authority for the 
position that when the specific property is destroyed, the neutral 
has no duty to perform. An important distinction, however, 
exists between the obligations of a sovereign power, which are 
to be recognized and performed through its executive, and the 
much more limited field of admiralty jurisdiction. Of course, 
a Court of Admiralty could neither draw upon the public treasury, 
nor levy war upon a foreign power. But we can find in Mr. 
Wheaton's work no evidence that he ever intended to sanction the 
doctrine that sovereign power can excuse itself from performing 
the duties of sovereignty on the plea of weakness. 

We have been asked whether we mean to insist that Portugal 
was bound to go to war ? We answer, certainly not. Portugal 
owed us nO'Such obligation. The question, so far as war is con- 
cerned, was, whether she owed that measure to herself? Her 
obligation was to yield us protection, and having failed in that, 
to indemnify us. Whether she would prosecute a claim against 
Great Britain by the sword or otherwise, for reimbursement, was 
altogether her own affair. If she was so weak or so pusillani- 
mous as to waive her rights in this respect, we certainly could 
not complain. We only say that her high state amongst the 
powers of earth required her to protect or indemnify us, and forbid 
her to plead weakness or poverty as a ground of exemption. 

The unlimited liability of the neutral in such cases is asserted by 
the highest authorities on international law. It is asserted in the 



SPEECH OF CHAKLE8 o'cONOR, ESQ. 123 

published speeches of nearly every legislator who has spoken upon 
this claim. All our administrations without exception have main- 
tained it. Portugal herself conceded it in 1814, and even Louis 
Napoleon admits it. He says in his award, that if Captain Reid 
had not released her by his own conduct, Portugal was under an 
obligation " to afford him protection by other means than peaceful 
intervention." The original liability of Portugal is therefore 
manifest, unless Captain Reid, by some misconduct on his own 
part, forfeited the protection which she owed him. Whether he so 
misbehaved is a question of fact which we will discuss hereafter. 

The next question of law is, whether the enforcement of this 
claim against Portugal devolved upon the United States as a 
public duty. 

In return for the allegiance claimed by the sovereign, says Mr. 
Justice Blackstone, the sovereign " is always under an obligation 
to protect his subjects at all times and in all countries." And 
that this right of the subject "can never be forfeited by any 
distance of place or time, but only by misconduct." Wendell's 
Blackstone, pp. 310, 3fl, and notes. 

The Lord Chancellor of England, on the argument of Baron 
de Bode's case, 16 Eng. L. & Eq. Reports, p. 23, says, " It is 
admitted law that if the subject of a country is spoliated by a 
foreign government, he is entitled to obtain redress through the 
means of his own government. But if from weakness, timidity, or 
other cause on the part of his own government, no redress is obtained 
from the foreigner, then he has a claim against his own country." 

These are the maxims of monarchy at this day. It was the 
pride of her, who in ancient times, gave law to men and nations, 
that in the most distant climes and among the most barbarous 
people, " I am a Roman citizen," was a certain passport to safety. 
Shall it be said that our republic yields a less perfect protection to 
her citizens ? "We trust not. Mr. Justice Parker, one of the 
most eminent of American jurists, recognizes the rule that in such 
cases there rests " an obligation on the government of the United 



124 BKIG GENERAL AKMSTKONG. 

States to procure redress for its citizens, or itself to reimburse 
them." Farnam vs. Brooks ; 9 Pickering'' s Reports, 239. On 
this head there is no lack of precedents. Half the diplomacy of 
nations has been devoted to obtaining securities for their merchants 
when subjected in person or property to the jurisdiction of other 
states : half the treaties on record contain provisions for ascertain- 
ing dues, and making compensation on account of past failures in 
this respect, and all of them abound with mutual pledges of 
protection for the future. From the Father of his Country to our 
present Chief Magistrate, no executive has sent to Congress an 
annual message unmarked with recognitions of this duty. We 
defy reference to a single instance in which the President has failed 
annually to apprise Congress of his progress in pending efforts to 
obtain for our citizens redress of grievances suffered by the acts or 
omissions of other nations. 

The duty of our government in this respect, cannot be denied. 
It is not denied. The questions are how far did that duty extend ? 
was there any failure in performing it? and, if so, is the govern- 
ment responsible for the consequences ? 

Responsibility is denied on many grounds. 

In the first place, we are told, the government of the United 
States, in prosecuting claims against foreign powers for redress of 
grievances suffered by our citizens, is merely the agent of the 
injured individual ; and, assuming as applicable the same rules 
which obtain in the common law, concerning the private relation of 
principal and agent, or, more exactly speaking, master and servant, 
it is said that the claimants did not object to the treaty with Por- 
tugal, before it was made, or, afterwards, so protest against it, or 
against the action had under it, as to screen themselves from the 
imputation of having ratified the act of their servant, by implied 
consent or acquiescence. It is said the subsequent action of the 
claimants amounts to acquiescence — acquiescence is assent — assent 
is ratification, and then comes in this common maxim of servile 
law, " a subsequent assent is equivalent to an original command." 



SPEECH OF CHAELES o'cONOK, ESQ. 125 

On the other hand, and with equal confidence, it is asserted that 
the government is the sole judge what claims of the citizen it will 
enforce, in what manner, at what time, by what means, and to 
what extent, it will enforce them. It may, says our learned oppo- 
nent, relinquish them, submit them to arbitration and to any kind 
of arbitrament it judges to be expedient in reference to the general 
interests of the republic ; it may accept a compromise, or it may 
release them without compensation, or for a consideration of benefit 
or convenience to the public. In fine, its power over the whole 
subject, is claimed to be absolute in the most comprehensive sense 
of the word, no responsibility attaching to its action, whatever that 
action may be. 

It is true, that when laying down this latter proposition, the 
government solicitor became appalled by the enormity of his own 
doctrine. First, relieving his conscience by an empty admission 
that it would be wrong, nay, iniquitous, to sacrifice a private right 
to the public convenience, he endeavored to close this part of the 
discussion, by asserting that nothing of the kind had ever been done 
in the whole practice of the government. But feeling, as he 
reached it, that this assertion begged the very question before the ' 
court ; he returned like a stout-hearted champion to his starting 
point, and insisted that the power was vested in our government 
thus to deal with, traflfic in, and for its own benefit, dispose of the 
private right of the citizen, without any responsibility whatever. 

The two heads of exemption from liability thus advanced for the 
government, are manifestly inconsistent. It must be admitted that 
they cannot stand together ; we hope to show that neither of them 
is well founded. 

How can the government be an agent or mere servant, liable to 
be restrained by the master's prohibition, or afi"ected by his subse- 
quent censure, and, at the same time, possess absolute discretionary 
power over the whole subject, free from control, restraint or 
responsibility ? The mconsistency is too glaring. 

An individual despoiled by the rapacity, or aggrieved by the 



126 BRIG GENERAL ARMSTRONG. 

negligence of a foreign power, cannot lawfully wage war, or, in 
any other form, prosecute directly a claim for indemnity. His 
only remedy is to invoke the aid of his own government. By a 
fundamental rule of the social compact, sanctioned by immemorial 
practice, every community is bound to afford this kind of protection 
to its members. And when a sovereign state, in the performance of 
this duty, appears as a prosecutor for redress of injuries, the claim- 
ant and respondent are equal in power and dignity. The individual 
wrong-doer, and the individual sufferer, are alike lost sight of. The 
responding state cannot avoid liability, by delivering up for sacri- 
fice its agent or subject ; neither is the claiming state to be 
deemed a mere agent of the aggrieved person. It does not 
act in the name, or by the authority of the injured individual ; bat 
in its own name, and right, as ultimate and paramount lord pro- 
prietor of all things, and sovereign of all persons, within its juris- 
diction. Between these " high contracting," or high contending 
parties is the suit, and the trial ; between them must be the judg- 
ment, whether obtained by negotiation, awarded by arbitrament, 
or won by the sword. — (5, Howard's U. S. R., 397.) 

As the respective nations are the parties, and the only known or 
recognized parties, to the controversy, it necessarily follows that 
any act of the claiming power which bars its right of farther pro- 
secuting the claim, works an extinguishment of the claim itself — is, 
in substance and effect, a release to the respondent. 

The methods of pursuing such a claim are negotiation, and fail- 
ing that, war, or, if the respondent wjll consent, arbitration. In 
all cases which admit of its application, the latter is a resort 
favored by wisdom and humanity. When a claim is mutually sub- 
mitted to arbitrament and determined by the arbiter, that law of 
honor and good faith which nations must obey (8 Paige 534), 
declares the award to be final, unless a just and defensible cause 
can be assigned for disregarding it. If, upon its publication, 
neither party protest against it, the award becomes conclusive, 
whatever may be its moral or legal vices. 



SPEECH OP CHARLES o'cONOR, ESQ. 127 

In the present case, a perfectly valid claim against Portugal has 

been destroyed by the action of the government. We will prove 

this by the evidence before your Honors. The award of Louis 

Napoleon stands in our way, and is relied upon as an estoppel la 

connection with our review of the merits, we hope to show that the 

award is void as against us ; first, for want of jurisdiction; secondly, 

because the government did not place before the arbiter, but 

expressly withheld from his view important evidence, which afforded 

him an opportunity to decide upon facts from his own notions or ex 

parte stories, and sanctioned his availing himself thereof ; thirdly, 

because it refused us permission to be heard before the arbiter, or 

to present an argument to him ; and lastly, because even upon the 

imperfect proofs presented to him, the award is manifestly partial 

and unjust. 

Pursuant to the treaty with Portugal, by which this claim was 
to be submitted to the arbitrament of a third power, the Secretary 
of State, on the 20th of March, 1851, " in accordance," as he states, 
" with suggestions made by M. de Figaniere" (the minister of Por- 
tugal), instructed Mr. Hadduck, our representative at Lisbon, 
to prepare a protocol, with certain documents annexed, to be 
authenticated by the respective governments, and laid before the 
arbiter. The President of the French Republic was first named ; 
and in case he should decline the office. King Oscar, of Sweden, was 
to be chosen in his place. 

This lettter of instructions contains a very singular passage: it is 
in these words : — " You will understand, of course, that these 
copies {i. e., the papers to be annexed to the protocol) are limited 
to such communications as have passed between the American 
legation and the Portuguese government at Lisbon, and between 
this department and the Portuguese legation in Washington." 
The historical fact, that at the time of the occurrence, and when 
the proofs in support of the claim were first made up and presented, 
the Portuguese government was seated, not at Lisbon, but at Rio 
Jannro, renders it easy to perceive why the Portuguese minister 
Buggested this singular limitation of the proofs to be laid before tho 



12S BRIG GENEEAL AEM8TK0NG. 

arbiter. His suggestion was craftily made and unwarily adopted 
Its effect was to carry into the record to be submitted to the 
arbiter only so much and such parts of the evidence as happened 
to be incorporated with a renewed correspondence on the subject, 
which was commenced in 1834, about twenty years subsequently to 
the occurrence of the outrage for which redress was sought. We 
will presently show that this instruction caused to be suppressed at 
least one piece of evidence, which was of great force, and, as we 
conceive, perfectly conclusive upon the very point of Louis Napo- 
leon's judgment. By the 12th July, 1851, the Department of 
State was apprised of its mistake ; and, in a dispatch of that date 
to Mr. Hadduck, after calling his attention to the restrictive 
phraseology used in his previous instructions, Mr. Webster says: — 
" To provide, however, against the omission of any important part 
of the earlier portion of the correspondence, I mean that which 
passed in 1814 and 1815 in Rio Janeiro, where the Court of For 
tugal at that time resided, and which it could not have been iniendea 
to exclude, I transmit you herewith " copies, &c. 

The latter instructions were issued from the Department of State 
at Washington, on the 12th July, 1851 ; but, on the 9th day of 
the same month, three days previously, the protocol had been com 
pleted at Lisbon, signed and sealed by the respective agents of 
Portugal and of the United States, and forwarded to the arbiter 
This is expressly stated in Mr. Hadduck's letter to the State 
Department, dated 11th July, 1851. 

If any important part of the evidence was left out by this mis- 
adventure in preparing the documents, it must be confessed that 
the case was not properly prepared. The solicitor has felt the 
pressure of this circumstance. He could not help feeling it ; for 
we have read from the dispatch of July 12, 1851, an express 
admission by the Department of its own error. The answer now 
given to this objection is, that everything material in the prior cor 
respondence was, in some form, repeated in that which was annexed 
to the protocol. But the fact is otherwise. 

Louis Napoleon's award admits expressly, or impliedly, every 



SPEECH OF CHAELE8 o'cONOR, ESQ. 129 

proposition of law for which we contend. So far as the law is con- 
cerned, it asserts but a single position against us, to wit: that a 
belligerent who commences hostilities within the territory of a 
neutral, thereby forfeits all claim to protection, and this we have 
never denied. The Supreme Court of the United States has often 
so decided, and we have never set up any pretence to the contrary. 
Th& Anne 3, Wheaton's R. 435. The point of the award is, that 
Captain Reid and his gallant companions were the first aggressors. 
It goes upon a mere naked question of fact. How manifestly 
important, then, was it that the contemporaneous correspondence, 
and all the testimony taken at the time and bearing on this point, 
should have been laid before the arbiter. 

It seems that Commodore Lloyd, the commander of the British 
squadron, soon after the transaction, caused to be prepared, and 
sworn to by Lieutenant Fausset, an affidavit giving the British view 
of the facts. No full copy of this affidavit was furnished to the 
arbiter. A portion of it is found in the letter of Mr. James B. 
Clay, our minister at Lisbon, to Count Tojal, Portuguese Minister 
of Foreign Affairs, dated November 2d, 1849. That part is mani- 
festly false ; but great aid in developing its falsehood would almost 
necessarily have resulted from a review of its whole contents. 
Here was a serious failure on the part of our government in its 
obligation properly to collect and present the proofs. 

Immediately after the occurrence at Fayal, tlie Marquis D'Aguiar, 
the Portuguese Minister of Foreign Affairs, addressed a let- 
ter to Lord Strangford, the Minister Plenipotentiary of Great 
Britain, resident at the Court of Rio Janeiro, in which he 
denounced the outrage upon the General Armstrong as an " auda- 
cious" and an "unprovoked attack." He also called upon the 
British government to make " satisfaction and indemnity not only 
to the subjects of Portugal, but for the American privateer, whose 
security was guarantied by the safeguard of a neutral port." In 
the same letter, the Portuguese minister " nails to the counter," as 
a base falsehood, the pretence of Captain Lloyd, embodied in 

10 



130 BBIG GENERAL AEMSTRONG. 

Lieutenant Fansset's affidavit, and which Louis Napoleon has 
sought to consecrate as truth, thereby, as far as in him lay, falsify- 
ing American history, and dishonoring the American name. 

Thus speaks the Marquis D'Aguiar: — " His Excellency (Lord 
Strangford) will likewise observe the base attempt of the British 
commander, at the time he commenced the unprovoked attack on 
the American privateer, to attribute those violent measures to the 
breaking of the neutrality on the part of the Americans in the first 
instance, by repelling the armed barges that were sent for the pur- 
pose of reconnoitering that vessel, advocating, with the most mani- 
fest duplicity, that they (the Americans) were consequently the 
aggressors ; but what appears still more surprising, is the arrogance 
with which the British commander threatened to consider the terri- 
tory of his Royal Highness (the Prince Regent of Portugal) as 
enemies, should the Governor adopt any measures to prevent them 
from taking possession of the American privateer, which they sub- 
sequently plundered and set on fire." 

Some allusions to this letter were, indeed, contained in the cor- 
respondence submitted to the arbiter; but no copy of it, or of these 
important parts of it, was laid before him. This, the learned solici- 
tor tells us, was an unimportant omission, because the Portuguese 
Minister of State could only judge from the evidence; that his view 
of it, if erroneous, was not conclusive upon his government, and that 
Louis Napoleon was bound to exercise an independent judgment 
on the evidence itself. Admitting, for the sake of the argument, 
that all the facts were laid before Louis Napoleon (which was not 
the case), it cannot be maintained that this letter did not contain 
important matter for his consideration. He had assumed to decide 
a contested fact of considerable antiquity. The witnesses were not 
personally produced before him ; no truth-eliciting cross-examina- 
tion could be had, no oral dissection or discussion of the proofs was 
allowed. Was it an unimportant fact that the defendant in the cause 
— Portugal herself — had, through her highest authorities, solemnly, 
and at the very moment of the transaction, acknowledged the 



SPEECH OF CHARLES o'cONOR, ESQ. 131 

Iruth of Captain Reid's statement, and stamped as base duplicity 
and falsehood the story of Captain Lloyd and his lieutenant ? 
Contemporaneous opinion is strong evidence as to ancient facts. 
"When it is considered that this opinion came from our opponent in 
the cause under arbitrament, and that at the time of pronouncing 
it Portugal was not only the friend and the ally, but, it may be 
said, a dependent of Great Britain, its force as evidence cannot be 
too highly appreciated. If not technically conclusive, who will say 
that it was not very persuasive ? 

Here was another grievous failure in the duty of duly presenting 
the proofs in support of the claim on Portugal. 

There was another, and, as we regard it, still a greater failure. 
It is a very fair presumption that Captain Lloyd conceived the 
design of seizing the Armstrong for a special purpose. To facilitate 
aggressions upon our coast and in our rivers, small vessels were 
greatly needed. The desire to supply this need has always seemed 
the most probable solution of Lloyd's flagitiously illegal conduct. 
It so happens that one document included in the Rio Janeiro cor- 
respondence, and wholly omitted in the protocol, distinctly proves 
this motive. Immediately after the principal or midnight combat, 
William Greaves, the British Consul at Fayal, addressed to the 
Portuguese Governor of the Azores a letter, in which is found this 
statement : — " The (British) commander will send a brig from his 
squadron to fire on the American schooner ; and if the said brig 
should encounter any hostilities from the castle, or your Excellency 
should allow the masts to he taken from that schooner (the General 
Armstrong), he will regard this island as an enemy of his Britannic 
Majesty, and will treat the town and castle accordingly." 

Lloyd threatened to bombard the town and castle of a friend and 
ally of his sovereign, in case the authorities should ^permit the Ameri- 
cans to dismantle or destroy their own vessel so as to unfit her 
for service. Anxiety to save an enemy from suicide, proves some 
other motive than revenge. The desire to reduce him to captivity 
and servitude can alone account for it. 



132 BEIG GENERAL AEMSTKONG. 

All these important proofs having been suppressed, it cannot he 
eaid that the claimant's case was fairly tried before Louis Napo- 
leon. According to the recorded admission of that great jurist 
and statesman, Daniel Webster, contained in his official letter of July 
12, 1851, it was submitted in an imperfect and improper manner. 

The failure to arrange the proofs properly so called, separately 
from the mere arguments contained in the correspondence, seems to 
have misled Louis Napoleon, as to the nature of the submission, or 
to have furnished him with a pretence for assuming a power which 
our government could not have intended to confer. 

The whole frame of hia award implies that in respect to the facts, 
he did not consider himself bound by the documentary proofs, 
annexed to the protocol, and that he assumed the power of ascer- 
taining them aliunde. 

For this purpose, we may fairly presume that he rambled whither- 
Boever he pleased — into British history or into British table-talk* 
He recites that he proceeded to judgment, " after having caused 
himself to be correctly and circumstantially informed in regard 
to the fads which have been the cause of the difference, and after 
having minutely examined the documents, duly signed in the names 
of the two parties, which have been submitted to our inspectioji by 
the representatives of both powers." 

These words certainly imply that he sought proof of the facts 
elsewhere, and afterwards examined the protocol with its attached 
documents, as an additional or supplemental act. He did not 
obtain what he calls his correct and circumstantial information, 
solely and exclusively by a perusal of these papers. 

Tlius it appears that after having submitted the claim to an 
arbiter, the government failed in its first duty as promovent. It not 
only omitted to produce the evidence in its power, but expressly 
withheld it at the instigation of the adverse party. It also fur- 
nished the partial umpire with an excuse for assuming powers not 
granted to him, and not intended to be conferred upon him. 

To cap the climax of injustice in the measures by which this claim 



SPEECH OF CHARLES o'cONOE, ESQ. 133 

was sacrificed, the claimants were refused a hearing before the arbi- 
ter, or even the liberty of presenting to him a written argument in 
support of their claim. This was one of those flagitious violations 
of justice, against which every honest mind must revolt. To reject 
without a hearing may be well enough, or between a despot and 
bis bond-slave ; it is not within the capacity of a judge. Prece- 
dent, authority, reason and sentiment unite in condemning it. 

The Supreme Court of Pennsylvania, in Falcomr ^ Montgomery, 
4 Dallas' Reports, 233, says, " The plainest dictates of natural 
justice, must prescribe to every tribunal, the law that 'no man 
shall be condemned unheard.' It is not merely an abstract rule or 
positive right ; but it is the result of wise experience, and of a wise 
attention to the feelings and dispositions of human nature. An 
artless narrative of facts, a natural and ardent course of reasoning 
will sometimes have a wonderful effect upon a sound and generous 
mind ; an effect which the cold and minute details of a reporter 
can neither produce nor supplant. Besides, there is scarcely a piece 
of written evidence or a sentence of oral testimony, that is not sus- 
ceptible of some explanation, or exposed to some contradiction. To 
exclude the party, therefore, from the opportunity of interposing in 
any of these modes (which the most candid and the most intelligent 
of disinterested persons may easily overlook), is not only a privation 
of his right, but an act of injustice to the umpire, whose mind might 
be materially influenced by such interposition." 

The case Sharp v. Bickerdike, 3 Bow's Parliamentary Reports, 
102, arose upon an award made in Scotland. The award was not 
impeached for any other fault than the neglect of the arbitrator, to 
hear the parties, under a mistaken belief that he had consented 
to waive that right. The positive law of Scotland, was, that no 
award should be set aside, at the instance of either party, for any 
cause or reason whatever, unless it was for bribery, falsehood or cor- 
ruption in the arbitrator. Lord Eldon, delivering the judg- 
ment of the House of Lords, said, that by the great principle of 
eternal justice, which was prior to all these acts, &c., it was impos- 



134 BRIG GENERAL AKM8TE0NG. 

sible that the award could stand. He added, "Even if he had 
decidedly rightly, he had not decidedly justly." In these cases, 
and in Elmendorf v. Harris, decided by the cburt of dernier resort, 
in New York, 23 Wendell, 633 — the awards in question, were 
unanimously set aside upon this principle. Following this line of 
precedent, the court of Queen's Bench, in the very recent case of 
Oswald y. Grey, 29 Eng. Law & Eq. R. 88, annulled an award 
for this cause, saying, "A more glaring departure from the rales that 
ought to regulate the proceedings of persons sitting in the charac- 
ter of judges, it is impossible to conceive." 

Another and a conclusive objection to this award appears. 

As has been before observed, it goes upon a mere question of 
fact, that is to say, the question whether the Americans on the 
occasion in question, resorted to force before they were assailed, or 
subjected to any indignity or peril 1 

It never could have beeu the intent of the Executive or the 
Senate in framing the treaty with Portugal, to submit that question 
to arbitrament. A total insensibility to national honor, would 
have been manifested in adopting such a course. 

The correspondence between Portugal and the United States 
shows that the former denied its liability on legal grounds. It was 
affirmed, on the part of Portugal, that the duty of a state to afford 
protection to foreigners within its territory was not absolute ; that if 
such state employed the means of protection in its power, it was not 
responsible for the inefficacy of such means. The absurdity of this 
position, as applicable to the case in hand, has been already shown, 
but suffice it to say, in this connection, that Portugal gravely insisted 
on it. The treaty (Art. 2.) recites, as the cause of the arbitrament, 
that " The high contracting parties, had not been able to come to 
an agreement, upon the question of public law, involved in the case of 
the American privateer, General Armstrong, destroyed by British 
vessels, in the waters of the Island of Fayal, in September, 1814." 

This recital proves that the intent was to refer a question of law 
only, not to refer a question of fact. Only two questions of law 



SPEECH OF CHARLES o'cONOK, ESQ. 135 

can be imagined as arising in the case ; first this silly pretence of 
immunity from the duties of sovereignty, on the ground of weakness, 
set up by Portugal ; and secondly, whether, if the General Arm- 
strong was the first assailant, she had thereby forfeited her claim to 
protection. The latter point, as we have shown, was well settled 
in the affirmative by our own courts, and was never disputed by us; 
consequently, it is plain, that but one question of law was in dis- 
pute. This question it might have been the part of wisdom to refer, 
for no third power could ever have decided it against us. Louis 
Napoleon himself was obliged to determine it in our favor. 

Did the Department of State, when preparing the protocol, 
intend to submit the question of fact to Louis Napoleon? We 
have shown that the treaty gave it no authority so to do; but we 
ask whether, through misapprehension of his powers, temporary 
inadvertence, or from any other cause, Daniel Webster, in the 
exercise of his high functions as representative of the honor and 
interests of his country, did really intend to submit to the arbitra- 
ment of a third power the question of fact, whether the British or 
the Americans were the aggressors in the memorable combat of 
September, 1814, at Fayal? We cannot 'believe that such an 
intention existed. We could not admit it without abandoning for 
ever our deep and unfeigned admiration of that illustrious jurist 
and statesman. Such an act would have been the extreme of folly. 
It involved, by an inevitable necessity, the loss of the claim, and 
what was far worse, a lasting reproach upon our country. 

In that midnight conflict, a little American privateer of two hun- 
dred and forty tons burthen, carrying seven guns and ninety men, 
defeated the force of a whole British fleet, killing of her assailants, 
according to the English historians themselves, within one-sixth as 
many men as Britain lost in the great naval victory off Cape St. 
Yincent. 

The strength of this comparison will be best exhibited by the 
facts. In that action there were fifty ships of war engaged, and 
Britain's immortal Nelson captured the Sautissima Triuidada of 136 
guns, and three other three-deckers. 



136 BEIG GENERAL AKMSTEONG. 

Making due allowance for the disparity of the forces engaged, 
looking with severely exact justice to precise facts, and judging by 
results, there is not a transaction in the whole history of naval war- 
fare which reflects such signal lustre upon the gallantry of the 
■ actors as the defense of the General Armstrong. True, the heroes 
who perished in the fight had mouldered into dust, and no monu- 
ment honored their resting-places. Those who survived it had 
nearly all passed from earth, and the very few yet alive were near 
the close of their earthly pilgrimage, and were pining in want and 
penury, sad memorials of that neglect which is proverbially the 
recompense of public benefactors. But the glory of their achieve- 
ments was not forgotten. It belonged to the American name : it 
had irradiated our naval diadem for forty years, and had become a 
matter of history. Was an American Senate likely to forget its 
duty toward these recollections ? Was Daniel Webster the man to 
deliver over this bright page in our annals, to be obliterated by the 
dictum of an European prince ? 

Honor cannot attend or result from unla»wful violence. Unable 
to deny the physical results, Britain had sought to stigmatize the 
conduct of Captain Reid as an unprovoked aggression, in breach of 
Portuguese neutrality, contrary to the law of nations, and deserv- 
ing only the contempt and abhorrence of mankind. Desperate as 
may seem the folly of imputing to this little cock-boat aggressive- 
ness against a whole fleet, any resort was preferable to a confes ■ 
sion of the facts. Accordingly this pitifully absurd tale was placed 
upon the records of the British admiralty, and thence transferred to 
the annals of the royal navy. Britain had sat in judgment on the 
fact, in her national capacity, and sanctioned this story with her 
high approval. On the other hand, the government of the United 
States, in all its dejiartraents, and under several successive adminis- 
trations, had testified its full belief in the statement of Captain 
Reid. From these sources, the literature of the respective nations 
had taken opposing opinions. The respective historians of Britain 
and of the United States stood before the world in direct conflict as 
to the fact, and were, of course, to descend to future times as rival 



SPEECH OF CHAELE8 o'cONOR, ESQ. 137 

claimants of credibility on this question. Its solution involved no 
matter of mere pecuniary interest, territorial aggrandizement or 
other worldly profit of any kind ; it was a question of national 
honor or shame. 

Did any nation ever submit such a question to the arbitrament 
of an umpire ? To admit it to be a question for trial was to 
embrace infamy ? As well might a high-toned gentleman charged' 
with some scandalous act by a known and avowed enemy, refer the 
slander to a mutual friend, with authority to decide, upon proofs, 
whether or not he was a scoundrel. Honor decides such questions 
for itself, reposes on its own known rectitude for a protection, or 
vindicates itself by more active means. It never reposes in a trus- 
tee, an agent, or an umpire, the power of consigning it to infamy. 

One of our reasons for denying that Mr. Webster could ever have 
intended to refer to Louis Napoleon the question of fact whether 
the Armstrong was the aggressor, is that the result must neces- 
sarily have been against his country and his fellow-citizens. 

It is a principle of universal law, that the affirmative must be 
proven by a preponderance of evidence. Equal colliding forces pro- 
duce a state of rest, as equal weights in the scales produce an 
equipoise. It follows that whenever the opposing proofs as to a 
disputed fact are equal, the party who asserts the fact must fail 
This, however true in theory, is rarely, if ever, applied in practice! 
Some circumstance affecting the credit of a witness or of a 
document produced on the one side or the other, almost always 
turns the scale; and the verdict or decision goes, accordingly, upon 
tlie theory of full credence being given to one side, and denied to 
the other. Thus, a judicial forum decides between parties, and 
resolves the doubtful point upon a nice scrutiny of the proofs, res- 
ponding according to its view of the right, notwithstanding that its 
decree may possibly wound the honor of one party and his wit- 
nesses, by impliedly imputing to them intentional misrepresentation. 
Now it so happens, as any one can in a moment see, that if the 
question of fact as to who was the first aggressor was to be submit- 



138 BEIG GENERAL AEMSTEONG. 

ted in this case, the United States would hold the affirmative, and 
the witnesses would be in direct conflict. Consequently a judg- 
ment could not be formed in our favor without thus implicating the 
witnessess of our adversary; whilst, on the other hand, the arbiter 
could decide against us upon the mere philosophical principle that a 
perfect balance being produced, it did not become him, as a friend 
and ally of each, to disbelieve either. 

The treaty provided that the submission should be made " to a 
sovereign potentate or chief of some nation in amity with both the 
high contracting parties." It was well known that the true party 
for whom Portugal appeared in the case was Great Britain. 
Whatever Portugal might be compelled to pay to us, Great 
Britain would of course, be held to reimburse. But, besides all 
this — and hence this bitter, long-continued, unyielding opposition 
to this claim by Portugal, her ally — the honor of Great Britain 
was deeply involved in the issue. Great Britain, for a wonder, was 
then " in amity " with the whole civilized world. She was on terms 
of the closest amity with both the chrysalis royalty of France, and 
with Oscar of Sweden, the only potentates contemplated by the 
protocol of submission. The witnesses on our side were private 
citizens. They had not even an official recognition to connect them 
with our government, in the technical consideration of an European 
sovereign, so that discrediting them might be deemed a direct 
offence to the nation. On the other hand, the opposing witnesses 
were public officers, servants, and agents of Great Britain. With- 
out taking into view, as additional reasons, or make-weights, 
toward the same conclusion, the intimate relations for mutual 
support and protection which exist between the sovereigns of 
Europe, is it not manifest to the most simple-minded observer, 
that no one of them, consistently with a prudent regard for his own 
high interests, could ever assume the office of arbiter upon a matter 
of fact between two independent sovereign powers, and pronounce 
a decree stigmatizing the public agents of either as perjured ? 

It was never denied that Captain Reid fired the first gun. 



SPEECH OF CHARLES o'cONOE, ESQ. Igg 

Prima facie then, he was the agressor. To justify this, and fix 
upon the British forces the inception of hostilities, it was necessary 
to prove affirmatively the menacing approach of an armed enemy. 
This was an affirmative of the class which it is most difficult to 
establish by proof. Captain Reid and his men could do no more 
than swear to it, as they did, and by way of confirmation, affirm, 
the distinct fact, that the fire was returned from the British boats. 
But the defeated commandant of the assailing force could easily 
deny this, and he had denied it. Xor was this a case in which, 
from the nature of the thing, affirmative testimony has a superiority 
over negative. There was no room for mistake or oversight on the 
British side. Lieutenant Fausset knew whether his men were 
armed or not ; and he swore they had no arms. Of course, if they 
had no arms they could not have . returned the American fire. 
In addition to the rule that the affirmative must be proved by 
a preponderance of testimony, there was a principle in close affinity 
to it, which any one could see led inevitably to our defeat in the 
umpirage. As to the hostile intent of the approaching British 
flotilla, Captain Reid could only act upon circumstances affording 
a presumption of such intent. 

Had he abstained from firing any longer than he did, it is 
probable that his deck would have been covered with an over- 
whelming armed force before a blow was struck. Perhaps no 
wound would ever have been given on either side. Perhaps every 
privateersman would have been suddenly seized and pinioned by 
superior numbers, and the gallant little Armstrong, instead of 
perishing gloriously amid her vanquished enemies, might have been 
employed to carry rapine and desolation to our defenceless homes 
and firesides. As it was always admitted that in the first combat 
Captain Reid repelled the assailing force whilst it yet held no more 
commanding position than that of menace, proof of an aggressive 
intent by those in the British boats was indispensable to our success; 
and the proof on that head could only be circumstantial. On the 
other hand, Lieutenant Fausset could swear positively that no such 



140 BRIG GENERAL ARMSTRONG. 

intention existed. He could say Captain Reid was mistaken, and 
thus, in the most polite style imaginable, entitle himself to the 
Imperial award. 

How hopelessly desperate, then, was the case — treated as a 
question of fact — considering who was the arbiter and the conse- 
quences to result from the decision. 

In this connection, we do not question the equal fitness of Louis 
Napoleon as an arbiter with any other European potentate. It 
was not to be expected that any sovereign of Europe would 
convict the British officers of perjury. He could not otherwise 
conform to the known policy of his class, than by finding, as he 
did, that the fact was not proved. Consequently it would have 
been a gross error to submit a fact of this kind to the deter- 
mination of such an arbiter. He could not afford to act judi- 
cially, to scrutinize the evidence fairly, or to determine the fact 
justly. It would have been not only a grievous error in national 
policy, but a palpable failure in duty to the country, and to the 
claimants. No American who regards the honor of his country, 
will ever admit that the Senate of the United States intended to 
submit to any earthly arbitrament the question of national honor 
which Louis Napoleon has assumed to decide. No friend or honest 
admirer of Daniel Webster will ever admit that he could so far 
mistake the import of the treaty, as to suppose that he had power to 
submit it, or that he could be so blind to the dictates of reason and 
common sense, or so ignorant of the motives of state policy whicli 
govern European potentates, as not to see that such submission was 
equivalent to what lawyers call a retraxit. He never could have 
intended thus to sacrifice at a blow the private interests committed 
to his charge, and the national honor he so deeply cherished. 

If we are right in this, it will be seen that Louis Napoleon's 
assumed jurisdiction over the fact was an usurpation of power not 
granted. Upon this ground alone, his award was wholly void in 
every legal and moral sense, and should have been rejected by our 
government immediately after its publication. 



SPEECH OF CHARLES o'cONOE, E8Q. 141 

The tendency to usurpation was pretty strong in the mind of the 
arbiter at the time, as may be perceived by reference to contem- 
poraneous events. But in reference to this case, he not only 
assumed powers not granted, but undertook to overrule, and 
negative the very facts agreed upon by the high contracting parties, 
and which, of course, he Was expressly forbidden to adjudge. 

In the second article of the treaty, it is stated in so many words, 
that the General Armstrong was " destroyed by British vessels in 
the waters of the island of Fayal." (Article 2.) Yet, the award, 
in reciting this part of the submission, studiously omits the words 
"by British vessels;" and, in its finding upon the facts, it states, that 
the act of destruction was by Captain Keid in consequence of the 
hostile demonstration made. Even if it was within his judicial 
province to set aside a fact agreed by the parties, he could not 
justify this finding. The proofs are clear that Captain Reid merely 
fired a shot through the vessel's bottom, in order to sink her in the 
harbor, thus placing her for the time beyond the enemy's reach, and 
reserving the chance of raising her at a future period. But the 
British, being thus baulked in their original design, set fire to her, 
and thereby effected her complete destruction. 

Thus, it will be seen, that independently of the deeper moral 
objections to it, Louis Napoleon's award was not entitled to any 
respect whatever, and was wholly void, because he based it upon 
a question of fact not submitted to him. It may be well, therefore 
to state here the legal grounds on which we insist that its accep- 
tance wrought an estinguishment of our claim against Portugal, 
and gave rise to a claim in its place against the Treasury of the 
United States. We had, originally, a just claim for indemnity 
upon Portugal, which, under the circumstances, it was the impera- 
tive duty of our government to enforce ; and which, as against us, 
the government had no right to surrender or annul. The power of 
prosecuting that claim was vested in the government alone, and 
consequently, the award of Louis Napoleon thereon— whether just 
and lawful or not— on being accepted by the Department to which 



142 BRIG GENERAL ARMSTRONG. 

is intrusted our Foreign Affairs, worked a complete extinguishment 
of the claim as against Portugal. (See Secretary Marcy's letter, 
dated Dec. 10th, 1854.) That acceptance deprived us of all 
recourse except upon the public treasury. We claim that the 
award of Louis Napoleon was partial and unjust ; we have shown 
that it was void, for want of jurisdiction, because not warranted 
by the submission, and that it was void as against us, because 
important evidence was withheld from him, and because the right 
to be heard in support of our claim before himself or his council, 
was denied to us. 

The withholding of evidence, the denial of a hearing, and the 
unwarrantable acceptance of the award, are relied upon as involv- 
ing a liability of the government, because they are not acts of a 
subordinate official, who might be personally responsible at law to 
the citizen for the injury produced by his malversation, but are acts 
of State, performed by the supreme executive in the exercise of a 
high discretionary authority which no court could control 
or correct, at the suit of an individual. Hence the liability of the 
nation. 

An opinion of Mr. Attorney-General Gushing has been cited, 
showing that the government is not responsible for the acts of 
marshals, collectors, pilots, and other subordinate officers who are 
appointed to facilitate the business operations of the citizen. We 
acquiesce unhesitatingly in this opinion. But it has no application 
to the President, the heads of departments, or other high public 
functionaries, who are themselves the government. These officers 
are intrusted with the power of representing the nation and acting 
for it. They cannot be arraigned in a court of law, or elsewhere 
made responsible to the private citizen who may be injured by acts 
of state, performed through their agency. For these the nation 
itself must answer, in its collective and sovereign capacity. Indeed 
the Departments constantly recognize this rule. Collectors of the 
customs are in the daily habit of seizing goods, and performing 
other acts of direct interference with the property of individuals in 



SPEECH OF CHARLES o'cONOEj ESQ. 143 

conformity with instructions from the Treasury founded upon a 
construction of the law which is subsequently condemned by the 
courts as erroneous ; and, as a necessary result, they are frequently 
made liable for damages and expenses. On all such occasions, 
it is the established practice to indemnify the subordinate out of 
the public treasury. Though selected with especial reference to 
their fitness for high station, the heads of departments are mortal, 
and must sometimes err through haste, inadvertence or miscon- 
ception. When such errors occur, there being no other remedy, it 
is altogether just that the government should make the reparation. 
Though the act directed to be done is unlawful, though the 
direction itself is, of course, a violation of law, still it is impossible 
to conduct public affairs, at all times, with absolute accuracy, and 
there must be, somewhere, a discretionary power, to act for the 
public upon emergencies, and in doubtful cases. When that 
discretion is rightly exercised, the nation takes the benefit ; when 
erroneously exercised, it should sustain the resulting loss. 

These same principles apply here. Our claim is against the 
public treasury because the injury complained of resulted from 
acts of the government itself, performed through its highest function- 
aries, in the exercise of an irresponsible discretion. The maxim 
respondeat superior, is eminently applicable to such cases. For acts 
of state, the State itself must answer. The government of the 
United States did not protest against the award of Louis Napo- 
leon, but, on the contrary, expressly declared its acquiescence 
through the department of State, and thus released Portugal from 
all further responsibility. Had the award been rejected, we should 
now stand in the same attitude which we had occupied for forty 
years. We would still hold a valid and subsisting claim against 
Portugal, neither abandoned nor released by our government, 
and still in due course of prosecution by the proper authority. 
Although, in such a condition of things, we might well murmur at 
the delay, perhaps mere delay, even amounting to neglect, would 
not entitle us to maintain here or elsewhere, a pecuniary demand 
against the United States. 



144: BKIG GENEEAL ARMSTRONG. 

The right to reject the award of a mutual frieud has been exer- 
cised by our government, and is fully recognized in the law of 
nations. Vattel says, that where there is flagrant partiality, or 
where the arbitrator exceeds his power by determining a matter 
not submitted to hun, it will not bind. " If by a sentence mani- 
festly unjust, and contrary to reason, the arbitrator has stripped 
himself of his quality, his judgment deserves no attention," — Book 
11, ch. 18, § 239. — In the same section, that writer illustrates his 
views by very opposite instances. He says, " in case of a vague 
and unlimited submission in which the parties have neither precisely 
determined what constitutes the subject of the quarrel, nor 
marked out the limits of their opposite pretensions, it may often 
happen that the arbitrator may exceed his power and pass judg- 
ment on what has not really been submitted for his decision." la 
this case the submission was framed without the requisite precision 
as to the point submitted, or Louis Napoleon, without that 
apology, transcended the authority granted. In either case, the 
award should have been rejected. 

We will now consider the evidence with a view to the question, 
whether Captain Reid was the aggressor. 

James' Naval History of Great Britain, vol. 6, p. 34 9^ states 
that " Captain Lloyd sent Lieutenant Robert Faussett, in the Plan- 
tagenet's pinnace, into the port, to ascertain the force of the schoo- 
ner (the Armstrong,) and to what nation she belonged. Owing 
to the strength of the tide, and the circumstance of the schooner 
getting under weigh, and dropping fast astern, the boat drifted 
nearer to her than had been intended. The American privateer 
hailed and desired the boat to keep off, but this was impracticable, 
owing to the quantity of stern-way on the schooner. The 
General Armstrong, then opened her fire, before the boat could get 
out of gun-shot, killed two and wounded seven of her men. As 
the captain of the American privateer had now broken the neu- 
trality, Captain Lloyd determined to send in and cut out his 
schooner, &c." 

This though not rightfully before Louis Napoleon, if before him 



SPEECH OF CHARLES o'cONOR, ESQ. ' I45 

at all, may be regarded as the British version. The historical con- 
flict between us and that nation, may be seen by reference to Inger- 
soll's history of the second war— vol. 1, pp. 44, 45. 

The proof before Louis Napoleon, and now before the court, is 
found in the affidavit of Faussett, on the British side, and that of 
Captain Reid, and his officers, on the American side. 

Lieutenant Faussett's affidavit tells substantially the same story 
as that contained in James' work. He says he went to inquire 
" what armed vessel " it was. He swears that his men were with- 
out arms, and that he was in the act of backing his boat astern 
with a boat-hook, when he was fired into. 

Captain Reid in his protest, verified by himself and nine of 
his officers, at Fayal, September 21, 1814, swears that the first 
approach to his vessel was made by " four boats filled with armed 
men, that he repeatedly hailed them and warned them to keep off, 
which they disregarding, he ordered his men to fire on them, which 
was done, killing and wounding several men." He further says, 
"The boats returned the fire, killing one man and wounding the 
first heutenant. They then fled to their ships and prepared for a 
second and more formidable attack." 

This is the direct evidence of the immediate actors in the 
drama. 

The absurdity of the English story is very striking. In the 
first place where was the necessity— what was the right of the 
British, then in a state of war, to approach an armed cruiser in a 
neutral port, for the purpose of a search as to her nation or her 
force? If necessary, could not the first of these particulars have 
been ascertained with great ease from any officer of the port ? No 
man will contend for the right to make the latter search, and though 
stated in James' Naval History, the court will perceive that the 
vague terms employed in Faussett's affidavit, leave it doubtful whe- 
ther he intends to avow any such design. 

The testimony of Captain Reid and his gallant associates, con- 
flicts with Faussett's in every point. First, they say the approach 

11 



146 BRIG GENERAL ARMSTRONG. 

was made with four boats instead of one. In the next place, they 
contradict most explicitly the pretence that the British were 
unarmed, by proving a return fire-effecting the death of one 
man, and wounding their first lieutenant. About this latter fact, 
there could be no mistake, and here the collision of testimony is so 
express, that no decision could possibly be made against the Ameri- 
can party, except by convicting them of willful and deliberate per- 
jury, or applying the cold philosophy to which we have before 
adverted, that is to say, deeming a fact not proven whenever the 
afBrming and denying witnesses have equal means of knowledge. 
And, indeed, it will be observed that Louis Napoleon must have gone 
upon this latter doctrine ; for his finding in the award, is simply 
this—" it is not certain that the men who manned the boats afore- 
said, were provided with arms and ammunition." 

Many circumstances tend to discredit this English story. Not 
only the ministry of Portugal, but all Fayal at the time, pro- 
nounced the English the assailants. The affidavit of Faussett did 
not see the light for many years subsequently to the occurrence. In 
this encounter, the Armstrong lost one killed and one wounded, 
whilst in her final conflict with twelve or fourteen boats full of 
armed men, in which such terrible havoc occurred amongst the enemy, 
Bhe lost only one additional man killed, and six more wounded. 

Faussett was obliged, of course, to deny that he approached the 
first time with more than one boat. Four boat loads of men would 
be rather a large body to detail on such a service as merely to ask 
a question; nor was it probable that a British fleet would send out 
so large a body of men without any arms whatever, to overhaul an 
unknown armed vessel. He was conscious, also, that the General 
Armstrong had been fired into with results destructive and fatal. 
This was witnessed by thousands, and could not be denied; but 
perverse ingenuity could invent a fable to account for it : so he 
appended to his narrative the apparently irrelevant circumstance 
that " Several Portuguese boats, at the time of said unprecedented 
attack, were going ashore, which, it seems, were said to be armed." 



SPEECH OF CHAELES o'oONOR, ESQ. 147 

To be sm-e, nothing could be less plausible than the conjecture- 
rather hinted at than hazarded — that these Portuguese boatmen 
fired into the Armstrong. With that halting indirection which 
marks his whole narrative, Faussett merely gives this on dit, with-. 
out venturing to assert, even upon report or hearsay, that there was 
any firing by the Portuguese. He left it to the venal apologist 
and the partial umpire to deem it " not certain " whether the fire 
came from the British or the Portuguese. 

Surely it is not necessary to dwell further upon this compa'rison. 
Faussett is manifestly unworthy of credit, and it appears by the 
award itself, that Louis Napoleon did not believe him. 

The primary fact in dispute was this : Did Faussett approach 
the Armstrong peacefully and unarmed, in a single small boat, to 
ask a question, or did he approach with several large boats, thereby 
displaying and employing such a force as to justify apprehensions of 
a hostile attack ? Louis Napoleon concedes it to be " dtar,^^ that 
this first approach to the General Armstrong was by "some Eng^ 
lish long boats, commanded by Lieutenant Robert Faussett of the 
British Navy." Disbelieving him as to the main and primary fact, 
what honest court, sitting to determine this case between man and 
man, could have found, wpon his evidence, that his crews were not 
armed, in opposition to the unimpeachcd oath of Captain Reid and 
his ofiicers, confirmed by the voice of all indifferent spectators ? 
The whole story is a palpable falsehood. The case is eminently one 
for the application of the rnle falsus in una falsus in omnibus. Any 
impartial and competent arbitrator would have applied it. 

Nothing but Louis Napoleon's total incapacity to sit in judgment 
on the case, in consequence of his political relations with Great 
Britain — the party most deeply implicated in the transaction — can 
account for the award. 

Upon reason and authority, the claim against Portugal appears 
to have been well founded in fact, and valid in law. We had, by 
the law of nations and the principles of justice, an absolute right to 
full indemnity from that country. It has been sacrificed, and the 
remaining question is this : Are we remediless ? 



148 BEIG GENERAL ARM8TK0HG. 

Whilst we deny the authority or force of this award, and qnea- 
tion the whole course of the government in respect to the reference, 
we wish to be understood as standing not in the least behind the 
learned solicitor in our admiration for the character of Daniel 
Webster. That great man had been jast called into the State 
Department, upon the sudden and wholly unexpected advent of a new 
administration. General Taylor's warlike spirit, as it was sup- 
posed, had brought the country to the verge of a war with Portu- 
gal. ' The civilian who succeeded him preferred peace, and of 
course his judgment controlled. Acting in harmony with the 
policy of the new executive, and perhaps without having given to 
the subject that careful examination which it required, Mr. Webster 
assented to the reference for the sake of peace. In this way, the 
rights of the claimants were sacrificed for what was deemed the 
public weal. 

But it is contended that the United States, in prosecuting these 
claims against foreign powers, acta only as agent for the individuals 
aggrieved, and that, as principals, we have ratified the act of sub- 
mission to Louis Napoleon. 

We have already denied, in toto, the applicability of this doc- 
trine. There can be no implied ratification, because the case is not 
one of principal and agent. The nation has the whole power : it is 
the principal, not the agent. In defending the rights of the citizen, 
it is no more an agent than a father is in avenging an insult offered to 
his child. It acts in vindication of its own honor and sovereignty. 
But we need not have denied the doctrine, for there is no evidence 
of ratification. 

On the first rumor that an arbitrament was in contemplation, Mr. 
Sara. C. Reid, Junior, the counsel for the claimants, addressed to the 
Secretary of State a letter inquiring of its truth, and praying to be 
beard on the subject before any such action should be had. The gal- 
lant old sailor himself who had never known fear of personal danger, 
shrank with a wisely instinctive horror from the bare thought of 
submitting his own and his country's honor to the arbitrament of an 
European despot. The keenness with which he felt upon this sub- 



SPEECH OF CHARLES o'cONOR, ESQ. 149 

ject is but thinly veiled by the modest courtesy of his respectful 
remonstrance. Let it be read : it deserves a place in the annals of 
his country. Let the personal characteristics of the hero, as 
exhibited in peaceful action, adorn the same page which bears to 
future times his illustrious deeds. They will alike challenge admi- 
ration and reflect honor upon all who may be so happy as to 
imitate. 

Nbw Yobk, Augutt 26, 1860. 
3.01L Daniel Webster, 

SlH : — By the recent daily j<}arnals, rumors are rife that the cbims of 
the General Armstrong, are about to be referred to some power for arbitra- 
tion. This mode at best being considered somewhat problematical, we, the 
claimants, would respectfully suggest, whether or not a settlement by treaty or 
convention may not in your opinion be preferable, as being most likely to 
^enable us to obtain our demands without the risk of a failure ? 

Feeling as we do, that we are in very safe and very able hands, we have 
no great fears for the future, if we be allowed to compare what you have 
already done for us, with what is to be expected on future occasions. 

After so much negotiation, controversy, and anxiety, for a long series 
of years, we now look to you, sir, with every confidence for a final and favor- 
able termination of this affair. And should you be pleased to honor us with 
your views, we shall esteem ourselves under additional obligations. 

With great respect, &c. 

S. C. Rkid, 
Late Commander of the G. A. 

In behalf of the Claimants. 

Before either of these letters reached the department of State, 
the negotiations had been brought to a close, and consequently our 
government could not recede. This had been done without notice to 
the claimants, without either knowledge or assent on their part, 
and was contrary to their wishes. 

As it was too late to prevent the arbitrament, the claimants did 
all that remained in their power. They solicited permission, firsf 
that young Mr. Reid, their counsel, might proceed to France, 
with competent authority to obtain a due advocacy of the case. 



150 BRIG GENERAL ABM8TK0NG. 

This was not granted. They next had prepared a written argu- 
ment, and prayed that it might be laid before the arbiter. This 
request was also denied. It seems to have been understood that it 
was beneath the dignity of a monarch, to hear the party. As an 
act of State, this refusal may have beeen according to established 
forms, but, if it was, how manifest becomes our position that the case 
never should have been referred. Royal grants usually run Ex 
certa scientia ei mero motu. This royal arbitrament seems to have 
been in like manner understood by all parties, except the uusub- 
mitting claimants, as an appeal to absolute, irresponsible monarchical 
volition ! 

These rejected solicitations for common justice, and these dis- 
regarded remonstrances, constitute the whole evidence relied upon 
to prove a ratification. If they have that effect, we ask, in the 
name of conscience and reason, what could the claimants have done 
in the premises which would not have been a ratification ? Was it 
necessary to levy war against the government ? Was it necessary 
to appear at the State Department and rail at the secretary, 
like a common scold ? Ought we to have hired penny-a-liners, 
and filled the journals of the day with invective ? Surely, none 
of these things will be pretended. We objected to the policy pur- 
sued. When overruled, and no other resource was left to us, 
we resolved, in humble submission to the omnipotence of the 
State Department, to make the most of a bad position and to devote 
every means in our power to the attainment of success. 

It may be presumed that our objections to the submission are 
not relied upon as acts of ratification. Perhaps that point is 
mainly founded on our prayer to be heard before Louis Napoleon. 
What else could we have done at that stage of the affair ? Silence 
would have been deemed assent. Any omission on our part to do 
and suggest whatever was in our power and which could possibly 
conduce to success, would have been disrespectful toward our 
government, and might justly have been condemned. Desperate aa 
the case may have seemed to us, at did not appear so to the 



SPEECH OF CHARLES o'cONOR, ESQ. 151 

government, and surely we were riglit in straining every nerve to 
secure success. The spirit which animated our gallant tars in the 
midnight combat at Fayal, secured neither safety nor entire suc- 
cess ; but it inflicted upon the enemy an irreparable wound. It 
reflected lustre upon our country. The same wise, gallant, perse- 
vering, and indomitable spirit, presided over this last effort to sus- 
tain a righteous cause sinking under the combined influence of 
artifice in the enemy, partiality in the judge and oversight in the 
prosecutors. It did not succeed ; but this court will not permit it 
to prejudice the man who made it. On the contrary, it was on hia 
part a performance of duty. Instead of justifying his con- 
demnation to perpetual silence as a willing participator in this 
unwise submission, it is precisely the act which secures him still a 
standing in court, as a claimant, and entitles him this day to 
ask a judicial sentence against the unjust arbiter. Judex damnatur 
cum nocens aisolvitur. 

There is something most irrational in the pretence that this 
prayer for leave to be heard, although rejected, was a ratification 
by us of all that had been done. A gladiator cast naked and 
weaponless into the arena, would instinctively call for a sword as 
the lion approached him. According to our learned adversary's 
notions of justice, this last prayer of the predestined victim, 
although cruelly denied, would be an approval of his sentence to 
the unequal conflict. We dismiss, without further comment, this 
idlest of all idle pretences. 

It has been urged that Captain Reid ought to have surren- 
dered ; that he would have suffered no dishonor in yielding without 
a blow. Suppose it to be so, was there neither merit nor honor in 
the opposite course ? But we cannot agree with the learned solici- 
tor in this. An act of Congress passed at the commencement of 
the war, directed the President to prepare instructions and to cause 
a copy to be delivered to the captain of every private armed crui- 
Bcr.— 2 Statutes at large, p. 161, § 8. Our copy was lost in the 
Armstrong ; knowing that a line of conduct very different from 
tame and unresisting submission, was commanded, we have sought 



^^2 BEIG GENERAL AEMSTEONG. 

for the original among the archives of the department, but without 
success. The same remorseless enemy who destroyed the copy at 
Fayal, at about the same moment, destroyed the original record at 
this capitol. We cannot therefore, produce it, but we submit that 
this court should infer the fact. The instructions undoubtedly were 
to use the utmost exertions to defeat the military and naval forces of 
the enemy, whenever and wherever encountered. The ninth section 
of the same act gave a bounty to each person on board, when 
any privateer burnt, sunk, or destroyed an armed vessel of the 
enemy of equal force. 

Pensions are also allowed by the acts of Congress to every officer, 
seaman and marine belonging to a privateer, disabled in any 
engagement, with the armed vessels of the enemy.— Statutes at large, 
vol. 2, p 799, § 2. 

This point ought not to have been urged by the counsel for the 
government. Indeed tte fact that it is here urged with a hope of 
success, considering the ground of the arbiter's decision against 
us, gives great, and we conceive conclusive force to a distinct 
equity entitling us to compensation from the public treasury. 

The facts and circumstances in proof, show clearly that Captain 
Lloyd's object was to possess himself of the General Armstrong, 
for the purpose of employing her against the unprotected villages 
and hamlets upon our sea-board. 

We have shown that the first approach was by many boats, and 
that the men in them must have been armed. Louis Napoleon 
admits the former fact ; indubitable results make manifest the 
latter. The letter of Consul Graves proves Lloyd's desire to cap- 
ture the vessel in an uninjured state, and the first approach as 
proved by Faussett himself, shows a design to carry her by sur- 
prise. His pinnace, as he calls it, when fired into, was immediately 
alongside of the Armstrong, so near that he employed a boat-hook 
to direct her motions. 

These circumstances are, we say, entirely satisfactory proof of 
the design imputed. 
How great then was the merit of Captain Reid, how deep were 



SPEECH OF CHARLES o'cONOR, ESQ. 153 

our obligations to him and his gallant companions for having 
defeated it. 

Independently of the right to reimbarsement from Portugal, they 
have a direct claim upon the equity and justice of their country. 

Wlten the boats first approached, symptoms of this design, in the 
judgment of Captain Reid, were manifest. If Captain Reid had 
preserved a pusillanimous or selfishly pacific demeanor, submitted 
to capture, and allowed his vessel to become a weapon of offence 
against his country, the validity of his claim against Portugal 
never could have been effectually questioned. But he acted on 
appearances, defeated the design, crippled a whole British fleet, 
and conducted his operations in a manner at once so judi- 
cious and so gallant, that whilst, considering the forces employed, 
they excel in martial glory and fearful consequences to the enemy, 
any event of the whole war, every spectator, including even the 
Portuguese allies of our enemy — many of whom were injured in 
person and property, during the conflict — ^justified them as acts of 
imperiously necessary self-defence, warranted by the great princi- 
ples of natural and international law, notwithstanding that they 
were conducted within a neutral territory. His motive could only 
have been to defeat this pernicious design, his acts could not have 
been dictated by rashness and temerity, or by any selfish purpose. 
All the circumstances repel the imputation of rashness ; selfishness 
would have counselled submission to the enemy. He acted on a 
belief which we can now see was amply justified ; he defeated the 
hostile intent. No mortal can set limits to the benefit which may 
probably have resulted to these United States, from that defeat. 

Yet the very nature of the case rendered proof that that intent 
actually existed extremely difficult. Counter-evidence mast of 
course be very accessible to the unprincipled assailant. The intent 
itself was fraudulent and dishonorable. Those engaged in it could 
not be very conscientious. Falsehood, deception and prevarication, 
are the invariable allies of fraud. In submitting himself to the 
government of his well-founded opinion on this point, Captain 



154 BRIG GENEKAL ARMSTRONG. 

Reid performed an act of disinterested devotion to tlie defence 
of his country. It was a departure from what the solicitor now 
calls " the private business speculation in which he was engaged." 
It was a voluntary act of national defence. By entering* upon it, 
he threw away his certain claim to reimbursement from the Portu- 
guese government, for it exposed him to that very judicial con- 
demnation by which the claim has been sacrificed. Upon any 
proofs whicli could ever be produced it might be to a partial arbi- 
trator, nay, to any tribunal quite "uncertain" that the hostile and 
aggressive intent which he anticipated and repelled, had any exist- 
ence except in his own imagination. 

In thus judging and acting, Captain Reid performed a great 
public benefit He carried on war against the enemy at his own 
expense, and it was only necessary to satisfy the constituted author- 
ities of his country that the act was a proper one to be ratified 
and adopted, in order to give him a perfect claim in equity for 
reimbursement of the cost from the public treasury. 

A government at war, always contemplates carrying on hos- 
tilities at tlie public cost by the employment of force against 
the enemy at such points as may seem most likely to prove effectual. 
And, although it is true that no citizen is authorized to assume the 
direction of war measures, yet whenever a private individual, 
with no motive but the public good, voluntarily avails himself of 
a favorable opportunity, and bears the brunt of a contest which 
government would gladly have assumed, could it have foreseen the 
occasion, we conceive that there arises in his favor an equitable 
claim to reimbursement. 

The principles of enlarged equity and good conscience illustrated 
by the voluntary service in rescuing the stack of wheat from 
impending peril mentioned in 20th Johnson's Reports, apply to 
such cases, and require the government to indemnify the patriotic 
actors.* 

• The point of law Iiere contended for was affirmed by the Commissioners of Claims under 
Uie late convention willi Great Britain, in re The Hudson's Bay Company.— President's Mes- 
sage of Aug. 11, 1856, p. 165. See also opinion of Denio, Oh. J. 3 Kernan's N. Y. Reports, 149. 



SPEECH OF CHARLES o'cONOR, ESQ. 155 

There is still another distinct head under which our claim should 
be allowed. 

It is asserted by the learned solicitor, and cannot be denied, 
that the government has entire and absolute control over such 
claims as that which existed in this case against Portugal, and is 
alone competent to prosecute them. Of course, we admit this pro- 
position. But whilst we concede the power, we deny that 
the government has the right deliberately and intentionally to 
work an inevitable shipwreck, or an express extinction of the 
private citizens' claira,*for its own ease in the administration of 
public affairs, for the sake of securing the favor, or appeasing the 
resentment of a foreign power, or for any object or purpose, 
beneficial only to the public at largo, except upon full compensation 
to the person whose right is thus devoted to the use of the nation. 
This denial is sustained by the eternal principles of justice. And 
these principles, so far as they touch this question, do not rest 
merely upon the authority of reason or even of precedent. They 
are consecrated as law by the fifth amendment to the Constitution. 
It provides that " private property shall not be taken for public 
use without just compensation." No one will pretend that a right 
to reimbursement for an injury is not property, or that the 
extinguishment of all remedy for the enforcement of such a right, 
is not taking away the right from him who possessed it. 

This fundamental rule has been violated by the government of 
the United States, in respect to the claim now before your Honors ; 
and, we insist, that whenever the heel of power tramples in this 
way upon the interests of a private citizen, a reference of his claim 
to this court, vests it with the means, and charges upon it the duty 
of vindicating the right and exacting justice from the conscience of 
the Republic. 

Some further general observations relative to the powers and 
duty of government in prosecuting against foreign powers claims 
for redress of grievances suffered by its citizens, may here be pro- 
per. 



156 BKIG GENERAL ARMSTRONG. 

Though its action is representative, and bears a certain analogy 
to that of an agent, yet, unlike any other agency, its power over the 
subject is supreme. Whatever the government could do in its 
legislative capacity it could properly have done in reference to this 
claim. Undoubtedly, in pursuing demands against foreign states, 
the government must be the sole judge of the measures to be 
adopted. It is the judge whether war shall be made, and how 
long the negotiations shall be permitted to progress before resort 
shall be had to extreme measures. The interests of particular indi- 
viduals are not to be preferred to the interests of the whole ; nor 
are the horrors of war to be rashly invoked. It is also the sole 
and the competent judge whether the claim actually exists. It 
has the right to take adequate measures for investigating the facts, 
and ascertaining not oi;ily the existence of the claim, but whether it 
is of such a nature as to be properly enforceable by governmental 
agency. This may be done in any tribunal, or by any officer or 
instrumentaUty the government may think fit to select. This is 
manifestly so, because in the nature of things the government can- 
not otherwise act intelligently. As a consequence, we must con- 
cede that when the official inquiry thus instituted results adversely 
to the claim, the suitor is obliged to submit. Even though his 
claim be just, he must relinquish its prosecution. In such a case 
he is in no worse plight than the owner of any other righteous 
demand, who, from want of evidence or other accident, has failed 
to persuade a court and jury of its justice or legality. 

Even when a claim has been found upon due examination to be 
just, we concede that the suitor must submit to such delay in the 
prosecution of it as the exigencies of public affairs may occasion ; 
nor is there any greater right to complain of delays than belong to 
suitors in our ordinary courts of justice. Much, time is often 
required to carry these cases through, and consequently mere delay 
cannot be considered a neglect of duty. 

Questions of more difficulty may arise in respect to the powers 
of government to compromise a claim which it has pronounced to 



SPEECH OF CHARLES o'cONOEj ESQ. 157 

be just. For instance, whether in consideration of some special cir- 
cumstances government would be authorized, in a class of cases, to 
accept as in full, a portion of the sum due ? Perhaps there are 
grounds which might justify the exercise of such a discretion. We 
do not mean to deny or dispute it, because the inquiry is altogether 
irrelevant to this case. 

It has been contended that when prosecuting claims against a 
foreign State, government has a right to discriminate between 
those equally meritorious, to prosecute some and abandon others. 
Perhaps this may be so. But there is an universally received 
notion of justice which forbids such a course. The learned solici- 
tor, may, if he pleases, pronounce it a vulgar prejudice — certainly 
its condemnation is usually expressed in a somewhat vulgar form 
of speech. It is called " making fish of one, and flesh of another." 
Even in matters of gift or courtesy it is disapproved. Equality 
is approved by the universal sense of mankind — in the distribution 
of alms, the bestowal of complimentary gifts, and the tender of 
courtesy, as well as in the administration of justice. When a 
parent's testament discriminates between his children, it often leaves 
a "plague-spot" upon the testator's memory, and lights the bale- 
ful fires of hatred amongst his posterity. How far a simple dis- 
crimination between claims of precisely equal merit might be com- 
petent, need not be determined. No such case is before the court 
This claim was never thus simply discriminated against and aban- 
doned. We will consider hereafter what may be the just result 
of that which did take place, that is to say, an abandonment of it 
by the government for a valuable consideration received by the 
public. 

The right of the government as prosecutor of claims for the spo- 
'liation of its citizens, to discriminate, to a certain extent, between 
classes of claims, might safely be conceded, and perhaps could not 
be denied. For instance, in negotiating with a foreign state, all 
claims existing prior to a certain date, or to some public event, might 
perhaps, be deferred ; all claims constituting a class, and, as such, 



158 BEIG GENERAL AEMSTEONG. 

falling within certain principles apparently detracting from their merit 
might perhaps be relinquished. This line of action would not always 
involve a manifest violation of the rule that, government should afford 
equal protection, and extend equal benefits to all beneath its sway. 
In imposing taxes, and other burdens, the legislative power often 
selects certain classes. Particular trades or occupations hitherto 
lawful may, by an exercise of legislative discretion, be adjudged to 
be prejudicial to the public interest, and henceforth prohibited or 
restrained within new and more confined limits. The legislative 
power decrees that only males between certain ages shall be sent 
to bare their bosoms to the enemy, and ward off his assaults, thus 
exempting all others from military duty. Inequalities in admi- 
nistration like these which go upon some reason, wisely or not, 
assumed to be just, have not the impress of unfairness and favorit- 
ism. We need not in this case deny their lawfulness. But whilst 
we concede to the government, in its legislative action, and in its 
executive administration, this right of discriminating between large 
classes of cases or persons, in the imposition of burthens and the 
granting or withholding of privileges, we deny its right to single 
out for sacrifice, a single individual, or one particular claim. 
Such an act is repugnant to the general sense of mankind ; and, 
if it be designed for the public interest, is forbidden by the 
Constitution, unless upon full compensation made from the public 
treasury. 

In the first place the government investigated the merits of this 
claim, and determined that it was valid. It was in the power of the 
government on obtaining new lights to have revoked this decision, 
but it never has done so. It never can do so, the facts forbid it. 
As parens patricc, it assumed the duty of enforcing against Portugal, 
this claim, together with several others of equal, but not of greater 
validity. Negotiations were commenced accordingly, and after 
many years they reached a conclusion. The ultimatum of Portugal 
was, that although she denied the justice of all the claims, yet, 
for the sake of peace, she would recede from her opposition to all 



SPEECH OF CHARLES o'cONOR, ESQ. , 159 

the others, and would pay them in full, provided our government 
would refer this one to arbitration. Whether she could be driven 
from this position by any thing less than actual compulsion, was to 
some extent tested by General Taylor's administration. The 
United States could not separate the several parts of the offer ; 
they were obliged to accept it or reject it in toto. 2 Sandford's 
Chancery Reports, 244. Mr. Clay, our minister, by authority 
of his government, rejected it, demanded his passports, and sailed 
from the Tagus. 

At this critical moment in the history of our claim, the heroic 
head of our government was summoned from mortal to immortal life. 
His more cool successor, armed with a higher degree of prudence, 
shrunk from the responsibilities of a war with that nation which 
had been pleading her own weakness and incapacity for half a cen- 
tury. He at once relinquished the high ground taken by his pre- 
decessor, and accepted the offer of Portugal. 

The treaty thereupon made, singled out the case of the General 
Armstrong, for umpirage, and the other claims were paid accord- 
ingly. 

We do not deny that our government might fairly have submit- 
ted any mere question of law involved in the case even to a third 
power, since on that part of the case error seems to have been 
impossible. Perhaps we could not complain of an investigation of 
the facts by a jury or by any responsible and* impartial individuals. 
But inasmuch as, from the outset, it was plainly manifest to the 
commonest understanding, that a reference of the claim, as a 
qnestion of fact, or as a mixed question of law and fact, to any 
potentate of Europe, necessarily involved its rejection, we insist 
that this treaty, taken in connection with the subsequent unwar- 
rantable acquiescence of our government in Louis Napoleon's 
award, was a sacrifice of the claim for the sake of accomplishing ends 
deemed to be important to the public, that is to say, the recovery 
of other claims, and the restoration of amity with Portugal. If wo 
are mistaken in the views which have been expressed to the con- 



160 BKIG GENERAL AKMSTEONG. 

trary, and the treaty did, indeed, contemplate a submission of the 
facts, our point is only made the more brief and direct. Then the 
treaty itself was a substantial surrender of our claim. All that 
followed was "leather or prunella," the mere ceremonial of the 
release. Louis Napoleon was the scrivener, chosen by the high 
contracting parties, to select the phrase and apply the forms 
required for a solemn authentication of their preconceived design. 
We do not mean that, in a common and vulgar sense, our govern- 
ment designed this relinquishment, but it is sound law and con- 
formable to reason, that parties are always held to intend the 
necessary result of their acts. Portugal saw that arbitration and 
release were practical synonyms ; the claimants saw it and remon- 
strated against the measure ; our government ought to have seen 
it, was bound to have seen it, and must therefore be adjudged to 
have seen it. 

Thus we establish our point that this claim being private pro- 
perty, was devoted to destruction for purposes of State, which fact, 
by the Constitution and by the elementary principles of general 
justice, entitles the owners to compensation from the public trea- 
sury. 

The great antiquity of this claim has been urged against it. That 
is certainly not the fault of the claimants. They presented it in 
their protest on the very day the General Armstrong was destroyed; 
they have patiently but respectfully pressed it by every means in 
their power from that day to the present. If it has been neglected 
by the government which alone had the means of enforcing it, that 
fact, 80 far from being an objection to the claim as now presented 
to this court, is the very basis on which it rests. 

The learned solicitor, however, thinks he has produced some 
thing in the shape of authority against us. He says the claim bis 
been thrice rejected, ^e has not pointed to the evidence of these 
rejections, nor to that place in the history of the case where we 
may find them recorded ; consequently we are left to conjecture 
what are the acts which he calls rejections and we can only invite 



SPEECH OF CHARLES o'cONOE, ESQ. 161 

attention to the circumstances upon which he may be supposed to 
rely. 

The first of these rejections took place in 1811. It is found in 
the report of a Senate committee upon the memorial of the owners 
of the General Armstrong. Perhaps that report was right in say- 
ing that the owners were not, at that time, or, upon the grounds 
set forth by by them, entitled to payment from the public treasury. 
But that very report declared " that indemnity from Portugal 
ought to be insisted on as an affair of State." This is rejection the 
first I Is it not an express recognition of all that we now assert ? 
In 1846 the claim was again presented to Congress, in conse- 
quence of its not- having been followed up against Portugal by Mr. 
Upshur, or perhaps, as has been suggested, by Mr. Upshur's clerk, 
and in consequence of its having been treated in like manner by 
Mr. Calhoun, who, it is said, acted through the very same irrespon- 
sible agency. It was then referred to the committee of the Senate 
on foreign afi-airs, who, in their report, after reviewing the circum- 
stances of the case, advised a polite reference of the case to the 
State Department to be proceeded with against Portugal, according 
to the recommendations of the report made in 1811 This report 
was adopted by the Senate. For some undiscoverable reason, 
however, the department failed to act until 1849, when Mr. Secre- 
tary Clayton took the matter up, and prosecuted it with vigor, and 
to the very verge, it has been said, of a war with Portugal. This 
is rejection the second ! 

We now proceed to the third rejection. After the delivery of 
of Louis Napoleon's award, two distinct petitions were presented, 
one to each house of Congress for the allowance of the claim in its ■ 
present form. And what were the results ? In the House of 
Representatives, a report of the most favorable kind was made. 
*' It says that a stronger case for relief in equity could scarcely have 
been presented." The House not having sufficient time to take up 
the claim, referred it to this court. Surely that was not a rejection I 
In the Senate an equally favorable report was unanimously pro- 

12 



\y' 



/ 



1^62 BRIG GEJrp:RAL ARMSTKONG. 

seated by the Committee on Foreign Affairs. That committee was 
composed of men not unlinown to fame, moat of whom have borne 
a conspicuous part in the legislation of the country, and all of whom 
may be supposed to have understood pretty well the principles of 
justice and also what was due to the honor of their country, 

A bill was accordingly brought into the Senate for the relief of 
the claimants. The fate of that bill is the only thing bearing any 
resemblance to a rejection which has ever occured in the history of 
this claim ; and, therefore, it may be proper to state somewhat in 
detail the action of the Senate. It is appealed to as evidence 
against the justice of our claim, and therefore, it is certainly proper 
to scrutinize it somewhat carefully, in order to ascertain whether it 
amounts to a rejection. The bill was presented and, without much 
examination, was lost by a vote of 12 to 21 ; a reconsideration 
took place, and by a vote of 22 to 11 it was ordered to its third 
reading. This is generally regarded as a test vote ; but scruples 
were indulged in, another reconsideration took place, and finally at 
the close of the session, after a very animated debate — a full report 
of which is presented to your Honors'— the bill was laid upon the 
table by a single vote. This is not a rejection, it is something 
like the put-off of a polite, but evasive debtor, " Call again 
lo-morrow." The whole technical force of such a vote is to post- 
pone the consideration of a measure for the session. Its moral 
weight, in this instance, deserves a passing notice. It was 25 to 24, 
consequently this lean majority — one single legislator — constitutes 
the whole length, the whole breadth, and the v, hole strength of the 
three alleged rejections. 

The claim was once allowed by a strong vote, and the utmost 
that can be alleged against it is, that it was once indefinitely post- 
poned by a majority consisting of one single vote. It is true, the 
claimants have been delayed and postponed ; they have been 
turned over to Portugal for redress, and sent muzzled and fettered 
to the footstool of Louis Napoleon for justice ; but their merit 
has never been denied. Every congressional roport upon the sub- 



SPEJICH OF CHAELE8 O^CONOK, ESQ. 163 

ject, and they amount to fear in number, covering a period of nearly 
forty years, is in their favor. 

Captain Reid has been reproached with sordid motives in 
mingling with the glorious history of his achievement the accep- 
tance of a pecuniary recompense. Is it dishonorable in the 
war-worn veteran, to accept from the overflowing treasury of 
his happy and prosperous country, the means of subsistence in 
his old age, and of decent sepulture when his hour of part- 
ing shall arrive ? Surely not. The learned solicitor accompanied 
his lecture on this head, with a reference to the example of 
him whose deeds and memory are deemed' the best illustrations 
of all that is heroic in patriotism, and exalted in honor and moral 
rectitude. Though Captain Reid presumes not to challenge a com- 
parison, we must say that this allusion of the learned solicitor was 
most unfortunate. Though there be no comparison, neither is there 
in this particular, any contrast. Though Washington never 
descended to the grade of a hireling, and persisted to the last in 
refusing compensation, though he did not even accept reimburse- 
ment of his personal expenses from our impoverished treasury 
during the conflict ; yet it is one of the recorded proofs of his 
practical wisdom, of his freedom from mere sentimentality, and of 
his precision and exactitude in the details of duty, that when his 
country had achieved her independence, and was able and willing to 
do justice, he rendered in his own hand-writing, a minute statement 
of his expenses in the public service, and received from Congress 
a full pecuniary indemnity. This parallel, which but for the learned 
solicitor's introduction of it, we would not have ventured to exhibit, 
refutes another of his arguments. He says that all claims allowed 
by government ought to be founded in some prescribed rule of law. 
Washington declined that very payment for his time and services 
which the law allowed, and accepted the indemnity which no known 
law directly sanctioned ; but which, being due on principles of 
natural justice, w^s conceded by the enlightened equity of Congress 
and the gratitude of his country. 

Captain Reid asks no gratuity ; he asks neither pay nor reward 



104 BUIG GENEKAL AEMSTKONa. 

for his personal toil, sufferings or achievements. Simple indemnity 
for the actual pecuniary losses of himself and his brave companions, 
is all that he seeks for himself or them. 

Here and elsewhere, it has been again and again urged that the 
allowance of this claim would be bad policy and "a dangerous 
precedent." 

Faying a just indemnity for such losses, it is said, would lead to 
numerous claims of the kind. When claims are not founded on 
meritorious services, they can be rejected. But we cannot see that 
any mischief will result to our country or its interests from allowing 
indemnity for the cost of achievements in war, so signal in them- 
selves and so beneficial in their consequences as that now under 
review. May such " precedents " never be wanting. They must 
ever redound to the profit and honor of our country, and can never 
prove dangerous, except to our enemies. 

It is said, if we repudiate the award of Louis Napoleon, it will 
disturb our amicable relations with Prance and prevent European 
potentates from ever acting as umpires for us. France cannot easily 
make a national quarrel out of our awarding compensation to our 
gallant tars for doing their duty. And if the effect of your 
decision should be to deter, for all future time, American statesmen 
from submitting to the arbitrary determination of an European 
potentate, without evidence and without argument, questions of 
fact involving our national honor, so much the better. If it shall 
also deter European rulers from ever again assuming the decision 
of such questions, it will render them an important service. He 
who is by position and circumstances disqualified from exercising an 
impartial judgment, sins against his best interests and his own 
honor in assuming the office of judge. 

The award is founded in error. It seeks to falsify American his- 
tory, to fix a stigma upon our national character, and, at onr 
expense, to rescue our enemy from merited opprobrium. Unless by 
some competent authority repudiated upon our part, we must be 
deemed, through all future time, as having subscribed to its truth 
and our own dishonor. Instead of allowing it to seem thus aequi- 



SPEECH OF CHAKLES o'cONOE, ESQ. 165 

esced in, this court, as it may do consistently with truth and justice, 
ought to stamp upon the page of history its indignant repro- 
bation of both the reference and the award. 

Let it not be said that posterity will prefer to the judgment 
of this court, the award of the impartial referee. In what degree 
he was impartial may be gathered from the facts. He assumed 
powers not granted. He gave credit to the denial of a witness 
whose positive assertion he discredited and solemnly found to be 
untrue. At the very time of forming his award he was secretly 
progressing in negotiations for an alliance with Great Britain, the 
nation chiefly interested against us in the controversy. The 
importance of that alliance, and the necessity of securing it, may 
be judged by the stupendous objects it had in view, and is now 
struggling to accomplish. Neither will it be overlooked that he 
was chosen to arbitrate as President of the Republic of France, 
and that, when preparing the award, he was actively engaged in 
undermining the foundations of that government which, as chief 
magistrate, he was pledged to maintain. Though the reference 
was to a President, the award came from a king. With the hand 
which signed it, he had just stricken down the liberties of his 
country ; that hand was yet reeking with the life-blood of a repub- 
lican constitution. 

No wonder that to gratify a monarchical ally, he readily sacrificed 
the rights of a republic. 

You have been asked to forbear from scrutinizing too nicely the 
justice of this award, from considerations of deference to the chief 
of a sovereign State now in amity with us. We ask you to 
scrutinize it closely, to judge it fearlessly, and, as becomes an 
American tribunal, to discard considerations of policy when justice 
and national renown are involved. If the arbiter were all that his 
most obsequious admirers would venture to assert, his merits have 
been sufficiently acknowledged and amply rewarded. The liberties 
of one republic have been sacrificed to his ambition, let us not 
immolate the fame of another upon the same unholy altar. 



iSG BEIG GENERAL ABMSTEONG. 



POINTS DECIDED BY THE COURT. 



OP THE BIGHTS AND OBLIGATIONS OP NEUTRALS. 

Aht violation of the neutrality of a port, by either of two belligerents, is a 

breach of the law of nations. 
The property of belligerents when within neutral jurisdiction is inviolable. 
It is not lawful to make neutral territory the scene of hostility, or to attack an 

enemy while within it ; and if the enemy be attacked, or any capture made 

under neutral protection, the neutral is bound to redress the injury and 

effect restitution. 
Where a party attacked, merely exercises the right of self-defence, it cannot 

be a cause of complaint ; the breach rests with the party violating the rights 

of the neutral by attacking the other. 
The act of sending out boats to efiect a capture, is in itself a direct act of 

hostihty, in violation of the law of nations. No measure is to be taken that 

will lead to immediate violence. 
Where an enemy's vessel is approached by the boats of a belligerent, in a 

neutral port, with an evident hostile intention, the right of self-defence, and 

law, and reason, justify the enemy in firing upon the boats, which had been 

hailed and warned to keep off. The fact that the enemy fired the first shot, 

does not constitute them the aggressors. 
Where a neutral power permits an enemy's vessel to be attacked and destroyed, 

while under neutral protection, the neutral is bound to make pecuniary com- 
pensation for the damages sustained by the injured party 
Where the Governor of a neutral Territory remonstrated against the hostile 

aggressions being committed upon an enemy's property, but did not use all 

the means in his power to protect it, the neutral will not be released from 

liability. 
The weakness of a nation, or the want of ability to protect her neutrality 

will not relieve her from the obligation to make compensation for property 

destroyed in the neutral territory. 

OP ARBITRATION — LIABILITY OF THE 60TERNMENT. 
The right of the government to submit a claim upon a foreign nation, involv- 
ing the interests of its citizens, to arbitration, is not denied, but it must bo 
done with a due regard to the rights of the citizen. 



OF THE RIGHTS AND OBLIGATIONS OF NEUTRALS. 167 

Where the government submits such a case to arbitration, in which the rights 
of the citizen are disregarded and sacrificed, the government is bound in 
justice to malie him restitution. 

To relieve the government from liability to its citizen on this account, it must 
appear that the case was one proper to be submitted ; that he had an-oppor- 
tunity of being heard before the arbitrator by argument and proofs ; that 
the award was certain, definite, and within the submission ; and that the 
arbitration did not exceed his powers. 

Where the government has universally acknowledged a claim of its citizens 
against a foreign nation, upon overwhelming evidence, and had always 
asserted that the foreign nation was bound to redress the injury; when 
it had resorted to argument, and finally, asserted its fixed determination 
that the foreign nation must redress its citizens, it has no right to hazard 
the claim by afterwards submitting it to the arbitration of a third power. 
Such a case is not proper for submission. 

Where a case is thus submitted, without the assent of the claimants, and 
against their wishes, the government assumes the responsibility, and becomes 
liable to the claimants. 

Where the government by a treaty with a foreign nation, agrees to accept the 
payment of certain claims, pro bono pads, with the condition that a certain 
special claim of its citizens shall be arbitrated, it is not released from 
responsibility to its own citizens, in case the award is unfavorable. 

Where the government submits a claim of a citizen to arbitration without his 
assent, it should provide that he shall be fully and fairly heard, and have all 
reasonable opportunity to lay before the arbitrator the evidence on which he 
relies. 

Where the government refused to sanction in any manner the presentment of 
a case by the claimants to the arbitrator, under the construction of a treaty, 
it will be in violation of the plainest principles of justice, and for such a 
wrong at the hands of the government, reparation should be made. 

OF THE AWARD AND ITS VALIDITY. 

An award made without the party having had an opportunity to be heard, 
rests neither upon law nor justice. Every party should have an opportunity 
to be heard before the tribunal that is to pass judgment on his rights. 

Where, by the terms of a treaty, the matter submitted was a question of law, 
and the award of the arbitrator was solely founded upon the facts held, 
that the award is void, because it does not settle the matter in dispute, and 



168 BKIQ GENERAL AKM6TIiOJ!fG. 

the matter submitted; because it does settle the question of fact, which was 
not submitted, and therefore exceeds the submission. 
Where an award is binding against the government, which by its own acts had 
disregarded and sacrificed the just rights of its citizens, it is bound to make 
compensation for the neglect of its duty in not affording them protection. 

March llth, 1856. 

Chief Justice Gilchrist delivered the opinion of the Court. 

This case has been pending before the people and govern- 
ment of the United States, in various forms, for more than forty- 
one years. It has never, until recently, been in a situation to be 
thoroughly argued and investigated as a question of law and of fact ; 
although, from the peculiar circumstances attending it, and from 
the discussions in Congress, it has commanded the attention and 
excited the interest of the public. We are now to consider it, how- 
ever, in its relation to individual rights and national liabilities, and 
in this point of view it requires a careful consideration. 

The case is an interesting one in a national point of view, not 
only because it relates to the duties of neutral nations towards 
belligerents, but because it raises the question, how far a belliger- 
ent power is liable to its citizens for losses they have sustained 
through the neglect of their government to insist that the neutral 
nation shall perform its obligations. It is also interesting as a 
brilliant illustration of the gallantry and self-devotion of our coun- 
trymen. 

The leading facts in the case have been notorious to the Ameri- 
can people for more than forty years. On the twenty-sixth day of 
September, 1814, the American private armed brig General Arm- 
strong cast anchor in the port of Fayal, a part of the dominions of 
the crown of Portugal, to get a supply of fresh water. In the after- 
noon the British brig Carnation, of 18 guns ; the ship Rota, of 38 
guns ; and the 14 gun-ship Plantagenet, came into port, and 
anchored about seven o'clock. In the evening four boats approached 
the General Armstrong. Captain Reid repeatedly hailed them, and 



DECISION OP JUDGE GILCHRIST. 169 

warned them to keep off. They continued to approach, when he 
fired on them and killed and wounded several men. The boats 
returned the fire, and killed one man, and wounded the first lieu- 
tenant. The British then retreated, and about midnight renewed 
the attack with twelve boats and about four hundred men, which 
ended in their total defeat with great slaughter, and the partial 
destruction of their boats. The American brig carried seven guns, 
and their crew amounted to ninety men. She had two killed, and 
seven wounded, while the killed and wounded on the part of the 
British must have been nearly two hundred men. So great was the 
loss that the Thais and Calypso, two sloops of war, which arrived 
a few days after, were sent home with the wounded men. The 
British commander, Captain Lloyd, finding this mode of attack 
unavailing,*with laudable discretion anchored the Carnation close in 
shore, and cannonaded the brig, when her gallant defenders finding 
it useless to resist such an overwhelming force, abandoned the vessel^ 
and she was then safely set on fire by the British. 

The kingdom of Portugal was neutral, or professed to be so, in 
the war between the United States and Great Britain, and Fayal 
was a neutral port. Any violation of the ueutrahty of the port, by 
either of the belligerents, was a breach of the law of nations. The 
property of belligerents when within the neutral jurisdiction is 
inviolable. It is not lawful to make neutral territory the scene of 
hostility, or to attack an enemy while within it ; and if the enemy 
be attacked, or any capture made under neutral protection, the 
neutral is bound to redress the injury and effect restitution.— 1 
Kent. Com., IH ; Vattel, B. 3, ch. 7, § 132. In the case of the 
Twee Gthroeders, 3 Rob., 136, Sir William Scott says, that no use 
of a neutral territory for the purposes of war is to be permitted. 
" Such an act as this," he says, " that a ship should station herself 
ou neutral territory, and send out her boats on hostile enterprises, 
is an act of hostility much too immediate to be permitted.' 

That there was a violation of the neutrality of the port of Fayal 
by the one party or the other is indisputable. If the party attacked 



170 BRIG GENEKAL ARMSTRONG. 

merely exercised the right of self-defence, that canuot be a cause of 
complaint. It is a question of fact, to be determined upon an 
examination of the evidence, which party violated the rights of the 
neutral by attacking the other. Did the American brig, with her 
seven guns and ninety men, commit the folly of attacking the boats 
of the British squadron, reinforced as their crews might almost 
instantly have been by many hundreds of men, or did the British 
commander, seeing the brig lying, as be imagined, helpless 
within his grasp, determine to attack and carry her at all events ; 
and did he pursue the course which any officer would have adopted 
if his object were to capture an enemy's vessel ? This, of itself, 
would, according to Sir William Scott, have been a violation of 
neutrality. " Suppose," he says, " that even if a direct hostile use 
should be required to bring it within the prohibition of the law of 
nations, nobody will say that the very act of sending out boats to 
effect a capture is not in itself an act directly hostile." Chancellor 
Kent says, " no measure is to be taken that will lead to immediate 
violence." — 1 Kent Comm., 118. Upon this point the law is clear 
and indisputable. 

The first question that presents itself is a question of fact, and 
that is, whether, in this transaction, the British or the Americans 
were the aggressors. More than forty-one years have elapsed since 
the affair happened. We are not, however, forced to depend upon 
the testimony of witnesses given for the first time after so long a 
period, and for the credit of which, time, and the failure of memory, 
might properly require us to make some deduction. We have the 
statements of those who were actors in the transaction, made at the 
time of its occurrence, and with everyopportunity of knowing the truth. 
It is agreed by the counsel on both sides, that the facts and the law 
are now both before us, and the various questions in the case have 
been argued with a skill and ability that leave nothing to be 
desired. We shall endeavor to examine the evidence, irrespective 
of the consideration that the United States and Great Britain were 
then at war, and of any national feeling that might be excited by 



DECISION OF JUDGE GILCHKIST. I7I 

the sanguinary conaict that took place in the harbor of Fayal. We 
Bhall examine, in the first place, the testimony of the witnesses, both 
American and English, who were actors in the transaction. 

On the 27th day of September, 1814, Samuel C. Reid, the cap- 
tain of the Armstrong ; Frederick A. Worth, the first lieutenant ; 
Robert Johnson, third lieutenant ; Benjamin Starks, sailing-mas- 
ter ; John Brosnoham, surgeon ; Robert E. Allen, captain of 
marines ; Thomas Parsons, James Davis, Eliphalet Sheffield, and 
Peter Tyson, prize masters of the brig, made oath before Mr. 
Dabney, the American consul for the Azores, to a declaration and 
protest, the material parts of which are as follows : " That he (Reid) 
sailed in and with said brig from the port of New York, on the 
ninth day of September last past, well, found, staunch, and strong, 
and manned with ninety officers and men for a cruise ; that nothino- 
material happened on the passage to this island, until the twenty- 
sixth instant, when she cast anchor in this port, soon after twelve 
o'clock at noon, with a view to get a supply of fresh water ; that 
during the said afternoon his crew were employed in taking on board 
water, when about sunset of the same day, the British brig of war 
Carnation, Captain Bentham, appeared suddenly, doubling round 
the northeast point of this port; she was immediately followed by the 
British ship Rota, of thirty-eight guns, Captain P. Somerville ; and 
the seventy-four gun ?hip Plantagenet, Captain Robert Lloyd ; 
which latter, it is understood, commanded the squadron. They all 
anchored about seven o'clock, P. M., and soon after, some suspicious 
movements on their part, indicating an intention to violate the neu- 
trality of the port, induced Captain Reid to order his brig to be 
warped in shore, close under the guns of the castle ; that in the act 
of doing so four boats approached his vessel, filled with armed men. 
Captain Reid repeatedly hailed them, and warned them to keep off, 
which they disregarding, he ordered his men to fire on them, which 
was done, and killed and wounded several men. The boats returned 
the fire, and killed one man, and wounded the first lieutenant ; they 
then fled to their ships and prepared for a second and more formida- 



172 BRIG GENERAL ARMSTRONG. 

V 

ble attack. The American brig, in the meantime, was placed with- 
in half cable's length of the shore, and within half pistol shot of 
the castle. Soon after midnight, twelve, or as some state, fourteen 
boats, supposed to contain nearly four hundred men, with small 
cannon, swivels, blunderbuses, and other arms, made a violent 
attack on the said brig, when a severe conflict ensued, which lasted 
near forty minutes, and terminated in the total defeat and partial des- 
truction of the boats, with an immense slaughter on the part of the 
British. The loss of the Americans in the action was one lieuten- 
ant and one seaman killed and two lieutenants and five seamen 
wounded. At daybreak, the brig Carnation was brought close in, 
and began a heavy cannonade on the American brig, when Captain 
Reid, finding further resistance unavailing, abandoned the vessel, after 
partially destroying her, and soon after, the British set her on fire. 
The said Captain Reid, therefore, desires me to take his protest, as 
he, by these presents, does most solemly protest, against the said 
Lloyd, commander of the said squadron, and against the other com- 
manders of the British ships engaged in this infamous attack on the 
said vessel, when lying in a neutral, friendly port ; and the said 
Captain Reid also protests against the government of Portugal, for 
their inability to protect and defend the neutrality of this their port 
and harbor ; as also, against all and other State or States, person 
or persons, whom it now doth or may concern, for all losses, costs, 
and damages that have arisen, or may arise to the owners, officers, 
and crew of the said brig General Armstrong, in consequence of her 
destruction, and the defeat of her cruise, in the manner afore- 
said." 

It will be perceived that Captain Reid and his officers state that 
some suspicious movements, indicating an intention to violate the 
neutrality of the port, induced Captain Reid to order his brig to 
be warped in shore, close under the guns of the castle ; " that in the 
act of doing so, four boats approached his vessel filled with 
armed men. Captain Reid repeatedly hailed them, and warned 
them to keep off, which they disregarding, he ordered his men to 



DECISION OF JUDGE GILCHRIST. 173 

fire on them, which was done, and killed and wounded several men. 
The boats returned the fire, and killed one man and wounded the 
first lieutenant." 

Here ten witnesses, upon whose veracity no imputation has been 
cast, and who had the means of observation, give an account of a 
transaction which happened under their own eyes, and in which they 
took a part. 

On the other, side is the deposition of Lieutenant Robert Fausset, 
sworn to on the 21th of September, 1814, before the British consul 
at Fayal, who states that, " on Monday, the 26th instant, about 
eight o'clock in the evening, he was ordered to go in the pinnace 
or guard-boat, unarmed, on board his Majesty's brig Carnation, to 
know what armed vessel was at anchor in the bay ; when Captain 
Bentham, of said brig, ordered him to inquire of said vessel ; which, 
by information, was said to be a privateer. When said boat came 
near the privateer, ' they hailed to say the Americans,' [which 
probably should be, "the Americans hailed,"] and desired the, 
English boat to keep off, or they would fire into her ; upon which, 
Mr. Fausset ordered his men to back astern, and with a boat-hook 
was in the act of so doing, when the Americans, in the most wan- 
ton manner, fired into the said English boat, killed two and 
wounded seven, some of them mortally ; and this, notwithstanding 
said Fausset frequently called out not to murder them, that they 
struck and called for quarters. Said Fausset solemnly declared 
that no resistance of any kind was made, nor could they do it, not 
having any arms, nor, of course, sent to attack said vessel. Also 
several Portuguese boats, at the time of said unprecedented attack, 
were going ashore, which, it seems, were said to be armed." 

This deposition is said, in the letter of Count Tojal to Mr. Hop- 
kins, of September 29th, 1849, to be " confirmed under oath by the 
master and one seaman of that barge." 

The contradictions are, that the protest says the boats were 
armed, while Fausset says they were unarmed ; the protest says the 
fire was returned, while Fausset says they made no resistance ; the 



174 BEIG GENERAL ARMSTEONG* 

protest says four boats approached the brig, while Fausset says he 
approached with the pinnace only ; the protest says that the boats 
disregarded the warning of Captain Reid to keep off, and that then 
he fired ; Fausset says that upon being ordered to keep off, he 
ordered his men to back astern, and was in the act of doing so 
when the Americans fired. Upon all these matters, there is the 
testimony of ten witnesses from the brig, against three from the 
boat ; and, of course, the weight of evidence is decidedly in favor 
of the Americans, admitting all the witnesses to have been equally 
honest, and to have possessed equal opportunities for knowing the 
truth. 

Now, upon this evidence, derived as it is from the actors in the 
transaction, who are the very best sources of information, no intelli* 
gent jury could doubt for a moment that the statements in the pro- 
test were proved. They would find the facts to be, as we do, that 
four armed boats approached the brig ; that they were hailed and 
ordered to keep off or they would be fired into ; that they dis- 
regarded the warning ; that the Americans then fired and killed 
some of tht^ir men ; that they returned the fire, and killed one man 
and wounded the first lieutenant. These facts we find to be proved 
by the evidence. 

But there are some statements in Fausset's deposition, which, to 
say the least, are singular, and which cast some doubt upon the 
entire correctness of his story. It appears from his deposition that 
the British knew that the brig was an "armed vessel," and, " by 
information, was said to be a privateer." He says that " he was 
ordered to go in the pinnace or guard-boat, unarvied,^^ to the Car- 
nation, to know what vessel it was \ and the captain ordered him 
to inquire of the brig. Now, it is singular, that in the evening, in 
a time of war, the commodore 'of a British squadron should be so 
particular as to order the boat to be unarmed, and still more singu- 
lar that Captain Bentham should, at such a time, order an unarmed 
boat to approach a vessel which he knew to be armed, and supposed 
to be a privateer, and probably an American privateer. It was 



DECISION OF JUDGE GILCHRIST. 175 

not by sending out unarmed boats, under such circumstances, that 
British naval officers attained for their country, and so long exer- 
cised, the sovereignty of the seas 5 and the British officers of forty 
years ago, were not trained in a school that would tolerate such 
negligence. It is singular, also, that Fausset, who was sent to 
inquire " what armed vessel was at anchor," did not hail the brig at 
all ; but, instead of lying off at a proper distance and hailing the 
brig, be was so near, when the Americans hailed him, that he says 
he backed his boat astern with a hoat-hook ! If he went there in 
his unsuspecting simplicity merely to procure information, was it 
necessary for him, in that quiet bay, and that moonlight night, to 
run his boat directly against the vessel's side ? Could he not have 
laid off a hundred feet from the brig, too far to hoard her, but near 
enough to get an answer to his question ? His story is entirely 
inconsistent with the position that he desired only to know what 
vessel she was, and strongly confirms the assertion in the protest, 
both that Captain Reid's warning was disregarded, and that the 
boat returned the fire. It is difficult to understand the purpose of 
Fausset's allusion to the Portuguese boats, which, " at the time of 
the attack, were going ashore, which, it seems, were said to be 
armed," unless it be to intimate that Captain Reid mistook Porta* 
guese armed boats going ashore for English armed boats about to 
attack his vessel. The Portuguese boats had nothing to do with the 
affair ; this is the only allusion to them, and the fact of their 
presence in the bay is wholly immaterial. It may be added that 
Fausset says more than that the boat was unarmed, from which it 
might be inferred that it was unarmed for an assault merely ; for 
he says that " no resistance of any kind was made, nor could they 
do it, not having any arms." He thus makes the condition of his 
boat so extremely defenceless, that his story fails to carry convic- 
tion with it. 

But it is said the Americans fired the first shot, and were, conse- 
quently, the aggressors. That they fired the first shot is clear, but 
the consequence does not follow that by so doing they were the 



176 BRIG GENERAL ARMSTRONG. 

aggressors. Sir William Scott says, 3 Rob. 136, " that a ship 
should station herself on neutral territory, and send out her boats 
on hostile enterprises, is an act of hostility much too immediate to 
be permitted." That the British did send out their boats on a 
hostile enterprise, is, we think, too clear to admit of a doubt. 
What, then, was Captain Reid to do, in the face of the moral cer- 
tainty that the British were determined to capture his vessel ? 
Was he to permit them to come on board ; to surrender the brave 
men who look to him for an example, to be carried to the prison at 
Dartmoor, or to be compelled to serve against their countrymen in 
an English frigate ? Was he not rather to obey the dictate alike 
of common sense and military honor, that in doubtful emergencies 
it is safer and nobler to fight than to retreat ; and, beyond all this, 
had he not a right, upon every principle that should animate a com- 
mander, having done all that prudence and discretion could ask for, 
to strike one blow in defence of his ship ? We have entirely mis- 
taken the extent of the right of self-defence, if both law and reason 
did not justify him in firing upon the English boats. 

But, even in the absence of direct evidence, the presumption that 
the boats were armed, and that the intention was hostile, is extreme- 
ly strong. We were at war with England. When the British 
squadron came into the port and discovered the American brig, it 
was well understood that all the vessels present were ships of war. 
It is absurd to say that these four boats were sent merely to recon- 
noitre the brig. Such a force was entirely unnecessary for that pur- 
pose. Such a thing was never heard of as that, in the evening, in 
time of war, a naval commander would approach a vessel which he 
did not know to be friendly, with four boats filled with unarmed 
men. And even if Fausset's statement be assumed to be correct, 
and one boat only approached the brig, it is extremely improbable 
that, if his boat were unarmed, and his intentions were friendly, he 
would, without hailing the brig, have come sufficiently near to her 
to reach her with a boat-hook, when it was just as easy to ascer- 
tain what vessel she was without coming so near as to excite sus- 



DECISION OF JUDGE GILCHRIST. lYT 

picioa. Especially would he have been cautious not to come too 
near, when as the protest states, " Captain Reid repeatedly hailed 
them and warned them to keep oflf. It is also worthy of remark 
that Fausset's deposition, made on the 2 tth of September, 1814, 
was not produced until thirty-five years afterwards, when it first 
made its appearance, on the 29th of September, 1849, in the letter of 
Count Tojal to Mr. Hopkins. It is singular, too, that a new and 
entirely different version of the transaction is given in the letter of 
Senor De Castro to Mr. Barrow, of the 3d of August, 1843, in 
which he says, " it is afiirmed, on the part of Great Britain, that 
they (the boats) only carried inoffensive men, who were going 
ashore from their ships on duty, and that they casually met the 
American brig when she was preparing to leave the port of Fayal." 
It is enough to say of this statement that it directly contradicts 
Fausset's deposition, and that both cannot be true. 

In addition to the positive evidence and the presumptions, there 
are also the contemporary declarations of the official persons at the 
island. 

Mr. Dabney, the American consul at Fayal, in his official note to 
the governor of the Azores, dated at nine o'clock in the evening of 
the 26th of September, 1814, says : " In violation of the neutrality, 
etc., the ships-of-war of his Britannic Majesty, now lying in this 
port, lately ordered four or five armed boats to surprise and carry 
off the American armed schooner General Armstrong. * * * 
The boats were repulsed, but a new and more formidable attack is 
now feared," etc. On the 28th of September, 1814, the governor of 
the Azores, Elias Jose Ribeiro, states in his dispatch to his govern- 
ment as follows : " We are now, for the first time, made witnesses 
to a horrible and bloody combat, occasioned by the madness, pride, 
and arrogance of an insolent British officer, who would not respect 
the neutrality maintained by Portugal in the existing contest be- 
tween his Britannic Majesty and the United States of America." 

He also says : " I learned that a boat had been sent from the 
British ships-of-war to examine the privateeer, and on its return 

13 



178 BRIG GENERAL ARMSTRONG. 

three others had been sent armed, and that the captain of the priva» 
teer not wishing to allow them to come on board of his vessel, a fire 
was begun on both sides." 

The governor then states that he desired a conference with the 
British commander, that he " might dissuade him, if he were a 
reasonable man, from continuing the hostilities begun so insolently, 
and repeated, to the scandalous contempt of the law of nations." 

He further says that he conceives the British commander " was 
aware of the great evil done by his hostile expeditions in a port not 
only neutral, but, moreover, belonging to an old friend and ally of 
his nation ;" and that he wishes to show him his " resentment on 
account of the insults committed by him ;" nor did he consider his 
invitation to visit his ship " either proper or decorous." 

The British commander, in answer to a request by the governor, 
that he would "respect the neutrality of the port, states, on the 26th 
of September, " that one of the boats of his Britannic Majesty's 
ship under my command was, without the slightest provocation, 
fired on by the American schooner General Armstrong, in conse- 
quence of which two men were killed and seven were wounded ; and 
that the neutrality of the port, which I had determined to respect, 
has been thereby violated. In consequence of this outrage, I am 
determined to take possession of that vessel." To this the governor 
replied : " I must, however, assure you, sir, that from the accounts 
M'hieh I have received, it is certain that the British boats were the 
first to attack the American schooner." 

It appears, also, from the diplomatic correspondence, that the 
United States always asserted, and that Portugal for a long time 
admitted, that the British were the aggressors, and that there was 
a just claim against Portugal. 

In the letter of the Marquis d'Aguiar, the Minister of Foreign 
Affairs, to Lord Strangford, the British minister, of December 22d, 
1814 , he speaks of " the outrageous manner in which that comman- 
der violated the neutrality * * by audaciously attacking the 
American privateer," and of " the base attempt of the British com- 



DECISION OF JUDGE GILCHRIBT. 1Y9 

mander, at the time he commeuced the unprovoked attack on the 
American privateer, to attribute those violent measures to the 
breaking the neutrality on the part of the Americans in the first 
instance." 

He states, also, that the Prince Regent had '* directed the minis- 
ter at London * * to require satisfaction and indemnification 
not only for his subjects, but for the American privateer, whose 
security vsras guaranteed by the safeguard of a neutral port." 

Mr. Sumter, the American minister at Rio, in his letter of Janu- 
ary 1, 1815, to the Marquis d'Aguiar, speaks of separation to the 
Prince Regent of Portugal, for so " rude and degrading an attack 
upon his sovereign authority." 

In this letter to Mr. Sumter the Marquis speaks of " the manifest 
violation o? his territory (by the British) in the infringement of its 
neutrality." 

In Mr. Monroe's letter, of the 3d of January, 1815, to Mr. 
Sumter, he says : " The growing frequency of similar outrages on 
the part of Great Britain renders it more than ever necessary for 
the government of the United States to exact from nations in 
amity with them a rigid fulfillment of all the obligations which a 
neutral character imposes." 

On the 14th of March, 1818, Mr. Adams, in a letter to the 
Portuguese minister at Washington, said : " It is hoped your 
government will, without further delay, grant to the sufferers by 
that transaction the full indemnity to which they are by the laws 
of nations entitled." 

In the letter of Mr. Dickens, the acting Secretary of State, of 
the 20th of May, 1835, to Mr. Kavanagh, the American chargd 
at Lisbon, h« says : "The Portuguese authorities at that place 
having failed to afford to this vessel the protection to which she was 
entitled in a friendly port, which she had entered as an asylum, 
the government is unquestionably bound by the law of nations to 
make good to the sufferers all the damages sustained in consequence 
•of the neglect of so obvious and acknowledged a duty." 



180 BRIG GENERAL ARMSTROKG. 

Mr. Kavanagh states to Mr. Forsyth, from Lisbon, on the SOtIs 
of January, 1836 : " It appears that the British commander 
alleged at the time, that the crew of the General Armstrong had 
provoked the first attack by firing into his boats ; but the protest 
made and signed oa the 21th of September, 1814, by Captain Reid 
and all his officers, and corroborating circumstances, disprove this 
allegation." He repeats his demand for indemnity in brs letter of 
the llth of February, 1837, to the Portuguese Minister of Foreign 
Affairs. 

In his dispatch to Mr. Forsyth, of the 18th of March, 1837, be 
states that he had had an interview with the minister, who " spoke 
of the claim as one which at present could not be considered admis- 
sible ;" and who said that " the Portuguese force at Fayal was 
altogether incompetent to protect the privateer against the assail- 
ants." 

On the 15th of January, 1842, Mr. Webster wrote to Mr. Bar- 
row concerning the claim : " Its justness, I believe, has never been 
denied." And Mr Barrow makes the same statement in his letter 
of May 25tb, 1842, to the Portuguese Minister of Foreign Affairs. 
Mr. Webster, in his letter to Mr, Barrow, of the 18th of August, 
1842, speaking of this claim and that of James Hall, says : " Both 
these claims are regarded as just by this government, and will not 
be relinquished under the objections heretofore made to them by the 
Portuguese government, which are entirely unsatisfactory." 

Mr. Barrow, in his letter of February 20th, 1843, to Mr. Web- 
ster, says : " The pretexts for the delay in the two former cases 
(the General Armstrong and James Hall) are of a very frivolous 
character, and such will continue to be given, I am convinced, until 
a very decided tone is assumed by our government." On the 20th 
of March, 1843, he writes : " There has been from tho first a mani- 
fest disposition, I might say determination, on the part of the Por- 
tuguese government ******** 
to avoid the liability to which they are subject by the law of natioas 
in the case of the General Armstrong." 



DECISION OF JUDGE GILCHRIST. 181 

Such are the contemporary declarations of witnesses who saw the 
transaction ; the indignant remonstrance of the governor of the 
Azores ; the admissions of the Portuguese government of the exis- 
tence of a claim on our part, contained in their demand for an 
indemnity from England, on account of the loss of the brig, and the 
repeated assertions of our government of a violation of the neu- 
trality by the British. Until the 4th of August, 1843, there had 
been no denial, but an admission of the justice of this claim upon 
them. But on that day the Portuguese Minister, in a letter to Mr. 
Barrow, says^ "The accounts all agree that the American brig, 
under the pretext that four boats from the said British vessel were 
approaching her, fired upon them, killing some of the men and 
wounding others. * * * It is, however, an undeniable fact 
that the first shot came from the American brig, thus evidently con- 
stituting her the aggressor, and a violator of the neutrality of the port 
of a friendly nation," 

Now the Portuguese Minister must be presumed to 'have read 
the evidence on the subject concerning which he thought fit to write 
a letter, and his most extraordinary declaration that all the accounts 
agreed that the American brig was the aggressor, must have been 
made in the face of the letter of the governor of the Azores, of the 
2Tth of September, 1814, that it wj^s " certain that the British boats 
were the first to attack the American schooner ;" and of his other 
expressions of indignation at the conduct of the British. Whatever 
it arose from, whether from an inability to appreciate the evidence, 
a disposition to procrastinate, or an unwillingness to offend the 
British government, its incorrectness is manifest. It may be 
remarked, that among the published documents are to be found 
allusions to the influence of the British minister in hindering the 
payment of this claim by Portugal. It is singular, indeed, that the 
Portuguese government should not have discovered that the evidence 
proved the Americans to have been the aggressors until twenty-nine 
years had elapsed since the afifair, and until the production of Fans 
set's deposition, which had slumbered in obscurity during thai period 



182 BEIG GENERAL ARMSTKONG. 

That the British goverumeat felt an interest in the matter, appears 
from Mr. Clayton's speech in the Senate, on the 26th of January, 
1855. He says that the British minister " desired to confer with 
me, on one occasion, in regard to the matter, but I declined any 
conference with him on the subject. I though the British govern- 
ment had no right to interfere." 

The governor of Fayal made no complaint that the Americans had 
Tiolated the neutrality of the port. That discovery, as has been 
stated, remained to be made by the Portuguese minister, in 1843. 
The governor did, however, complain of Captain Lloyd, and remon- 
atrated against his proceedings ; and even the minister, in his letter of 
August 3, 1843, says, that " the government of his Britannic Majesty, 
appreciating the rashness with which his officers acted in a neutral 
port against said brig, had no hesitation in apologizing to the Por- 
tuguese government." This statement, however, was denied by the 
British government, as appears from the letter of Count Tojal to 
Mr. Clay, of the 15th of May, 1850. It does not appear to be 
necessary to settle the question of veracity between them. 

Considering it, then, as proved, that the British were the aggresa- 
ors, the question arises, whether it was the duty of Portugal, 
according to the law of nations, to make pecuniary compensation 
for the damages sustained by the injured party. 

Upon this point the opinion of the government of the United 
States, as expressed through the various Secretaries of State, is 
entitled to much weight. That Portugal was bound to pay the 
damages sustained, is asserted by Mr. Monroe, Mr. Adams, Mr. 
Forsyth, Mr. Upshur, Mr. Webster, and Mr. Clayton. Mr. Forsyth, 
in his letter of September 21, 1836, instructs Mr. Kavanagh to 
" demand from the Portuguese authorities, the highest amount of 
damages which in your judgment a prudent and conscientious man 
would feel himself justified in asking, were he prosecuting his own 
claim." The same instructions are given to Mr. Clay, in Mr. Clay- 
ton's letter of March 8, 1850. 

It is doing the eminent men who have occupied the responsible 



DECISION OF JUDGE GTLCHIilST. 183 

position of Secretary of State, great injustice to assert that when 
they alleged that Portugal was liable in damages, they did not ex- 
press their honest convictions, but condescended to the position of 
an advocate. They had no temptation to say what they did not 
believe. The claim was not made a party question, nor did it havo 
any connection with party politics. There was no call upon them 
to hazard their reputation as statesmen and jurists, upon a position 
which they did not believe to be tenable. 

But the case of Portugal is attempted to be put on the ground 
that she was unable to protect her neutrality. 

To this position there are two answers. In Count Tojal's letter 
of March 9, 1850, to Mr. Clay, he says that, "no neutral is obliged 
to give pecuniary indemnification for damages and material losses 
that may have been caused in its ports by one belligerent to another 
once it can be shown that it has used all the means at its disposal 
to give protection." 

The answer to this is thus strongly put by Mr Clay, in his letter 
to Count Tojal, of March, 15, 1850. He says : "What were the 
means in her power ? She had the physical power of more than one 
hundred regular soldiers, some artillery, a fort, the power of the 
population of Fayal, about thirty American seamen, who request- 
ed to be allowed to defend their brethren, great advantage of posi- 
tion, and the immense moral power of right against wrong ; these 
were the means she had. Did she use all or any of them to pro- 
tect and defend the privateer ? Confessedly she did not ; she even 
went beyond mere failure to defend or protect, when she prevented 
the American seamen from rendering whatever assistance was in 
their power. And if she did not use all these means, is it not clear 
from his excellency's own argument, that she is bound to indem- 
nify ?" 

The whole tenor of the dispatch of the governor of the Azores, of 
the 28th of September, 1814, shows that he used no means what- 
ever with the British commander but expostulation. Although 
indignant at the outrage upon the sovereignty of Portugal, the dis- 



184 BRIG GENERAL ARMSTRONG. 

patch needs only a careful perusal to make it apparent that the 
governor was paralyzed by the position in which he stood, and that 
he had no firmness. He seems to take credit to himself for refusing 
to consent that the American seamen might aid in defending the 
brig, for taking away from the Americans, as they came ashore, 
their swords and pistols, and for the energetic feat of ordering the 
standard not to be hoisted over the castle the next morning, to show 
his resentment at the conduct of the British. He mentions also his 
decided act, in seizing two American seamen, who, during a funeral, 
"gave shouts of joy on account of the fight and retreat in which 
these officers lost their lives." All these might have been very bold 
and gallant acts, but unfortunately for him, his own government 
did not approve of his conduct. The Marquis d'Aguiar, the Por- 
tuguese Minister of Foreign Afi'airs, in his letter to Lord Strangford, 
of the 22d of December, 1814, says, that if it were not for the idea 
that he desired to protect the inhabitants from the ravages which 
the British commander would not have failed to inflict, " the censur- 
able moderation of the governor during these outrages would have 
induced his royal highness to have immediately caused a process to 
have been instituted for the punishment of that officer." The ques- 
tion is not whether Portugal was a stronger or a weaker nation than 
Great Britain. It is simply whether at Fayal, and under the ex- 
isting circumstances, the governor did what his duty required of him 
as an officer of a neutral nation ; and his government answered 
that question by saying that he did not do his duty. With these 
facts and admissions, it is almost idle to say that Portugal was not 
bound to make indemnity, because she was weak. Bynkershoeck 
says : " If it be the duty of the sovereign to use his utmost endea- 
vors to effect that purpose, it follows that he must do it at his own 
expense. Nay, by going to war, if other means are not sufficient. 
Such is the law which is observed among all nations." — Bynker- 
shoeck's Law of War, by Duponceau, p. 60. 

But admitting, for the sake of argument, that the governor of the 
Azores used all the means in his power, and was unable to resist 



DECISION OF JUDGE GILCHRIST. 185 

the British force, the other answer to the position is, that the law 
of nations did not relieve her from the obligation to make pecuniary 
compensation. 

Now, if Portugal was unable to protect her neutrality, that was 
her misfortune. Chancellor Kent says : " If the enemy be attacked, 
or any capture .made under neutral protection, the neutral is bound 
to redress the injury and efiTect restitution."—! Kent, 122. That is 
if the enemy be attacked, the neutral is bound to redress the in- 
jury ; if a capture be made, the neutral is bound to effect restitu- 
tion. The question here does not relate to restitution of property 
captured, but to the redress of an injury from a hostile attack. 
How is an injury, sustained by reason of an attack upou the pro-* 
perty of an enemy's citizen, to be redressed, but by paying for the 
injury done ? The position is stated absolutely, and without any 
provisoes or limitations. Can it be that a neutral is bound to restore 
a ship captured in its waters ; but if the ship be captured, and then 
sunk by the enemy, no duty whatever rests upon the neutral ? The 
same reason which requires a neutral to restore a captured vessel, 
calls on it also to make compensation where a vessel is destroyed. 
The same principle lies at the foundation of either duty. The posi- 
tion that a neutral is bound to make restitution, but cot compensa- 
tion, may thus be stated : If the neutral sees a ship captured in its 
waters, and is able to effect restitution, it is bound to do so. But 
if restitution cannot be made from whatever cause, then the neutral 
is to remonstrate to the belligerent who has done the v,rong, and 
who knows that the neutral has done all it could ; and if the belli- 
gerent refuses to do anything in the matter, still the law of nations ig 
satisfied, and the. affair is settled. Such was the course adopted in 
the present case. The vessel was destroyed by the British, and the 
neutral remonstrated, consequently, the neutral was absolved from 
all obligation to make compensation. This distinction between res- 
titution and reparation, although inappreciable, by the unassisted 
reason, may exist in virtue of some mysterious afflatus, which is sup- 
posed to inspire the councils of diplomatists. It is enough to aay 



136 BKIG GENEKAL AUMSTKONG. 

• 

that it deprives the law of nations on this point of all vitality, 
and reduces it to a solemn absurdity. When a ship is destroyed, 
this distinction releases the neutral from the obligation to do 
what is physically impossible, but it absolves the neutral from the 
duty of doing the only thing iu its power, that is, to effect restitu- 
tion. 

It is unnecessary to take the position that a neutral is bound 
always to have in all its ports a force sufficient to resist any attack 
that might be made. This would be unreasonable ; for even Eng- 
land, with her powerful navy, could not accomplish it. But it is 
equally unreasonable to say that because a neutral did not happen 
*to have at any given place a sufficient force to protect its neutrality, 
therefore it is absolved from all duty, happen what may. That Por- 
tugal, relatively to England, was a weak nation, may be admitted. 
But she assumed to be neutral in the war between England and 
America. As she claimed the rights, so she was subject to the 
obligations of neutrality. If she was not strong enough to cause 
herself to be respected as neutral, she should not have placed her- 
self in that position. She chose her. part in the great republic of 
the world, and stood in the relation to other nations upon a com- 
mon ground with them. It is said by Vattel, Prel. ch. § 18, " since 
men are naturally equal, and a perfect equality prevails in their 
rights and obligations, as equally proceeding from nature, nations 
composed of men, and considered as so many free persons, living 
together in the state of nature, are naturally equal, and inherit 
from nature the same obligations and rights. Power or weakness 
does not in this respect produce any difference. A dwarf is as much 
a man as a giant ; a small republic is no less a sovereign state than 
the most powerful kingdom." This is a clear and precise statement 
by an eminent writer of the reciprocal rights and obligations of na- 
tions, whatever may be their relative power. As weakness does not 
deprive a nation of its rights, it does not release her from the obli- 
gations which she owes to other nations. A nation may be weak 
as regards armies and fleets, but she may be wealthy. It may be a 



DECISION OF JUDGE GILCHKI8T. 187 

part of her policy to avoid the expenditure of her resources in mili- 
tarj and naval preparation. She may choose to lavish her revenue 
upon the empty forms and pageantry of government, disregarding 
and careless of the advance and happiness of her people. But it 
would be strange indeed, if the course she might see fit to adopt of 
her own free will, should be received as an excuse for her non- 
perforraanec of the duties which she would exact towards her- 
Belf from nations whose government might be better administered, 
and whose revenues might be more carefully expended. 

In Molloy's Treatise De Jure Maritimo, B. 1, Ch. 1, sec. 16, a 
case is stated which affords an exact precedent for the one before 
OS. After mentioning several cases where hostile encounters were 
forbidden in neutral ports, he says : " But they of Hamburgh 
were not so kind to the English when the Dutch fleet fell into their 
road, where rid at the same time some English merchantmen, whom 
they assaulted, took, burnt, and spoiled ; for which action, and not 
preserving the peace of their port, they were, by the law of nations, 
adjudged to answer the damage, and I think have paid most or all 
of it since." 

It is not to be expected that many precedents are to be found 
exactly resembling the present case, which was so peculiar in its 
circumstances. During her long war with France, England, by her 
powerful navy, was enabled to set at defiance the law of nations in 
respect to neutrals with impunity ; but the case cited from Molloy, 
shows that the English claimed from Hamburgh, in 1665, the same 
compensation in damages which the present claimants demanded 
from Portugal. It is unnecessary for us to pursue the investigation 
of the question as to the liability of Portugal any further. We 
have the opinion of the most eminent jurists and diplomatists of the 
Fnited States, the authority of Molloy, and, as we think we have 
shown, the intrinsic propriety and reasonableness of the position. 
We have found nothing in the books which deserves to be weighed 
against these views. Even Flanders, in his treatise on Maritime 
Law (p. 45,) although he states, as his individual opinion, that the 



188 BEIG GENERAL AEMSTliONG. 

reasoning which m aintains the obligations of the neutral to answer 
damages, seems to him to be inconclusive, admits that it is held by 
writers on the law of nations that the neutral is bound to redress 
the loss himself. But he cites no authority to the contrary, and he 
can find no stronger ground on which to found his opinion, than that 
the neutral is a host extending his hospitality to a belligerent who 
comes into his port. But, with submission, we conceive that such is 
not the relation in which the parties stand to each other. A nation 
which assumes to be neutral has certain duties which she is compelled, 
by the law of nations, to perform. It is said by Yaitel, book 3, 
eh. 7, § 118 : " A neutral nation preserves towards both the belli- 
gerent powers the several relations which nature has instituted be- 
tween nations. She ought to show herself ready to render them 
every office of humanity reciprocally due from one nation to another. 
She ought, in everything not directly relating to war, to give them 
all the assistance in her power, and of which they may stand in 
need." It thus appears that the neutral is not a host extending 
hospitality cz mem gratia, but is part of the great republic of 
nations, bound to render offices of humanity. The parallel of this 
writer, therefore, fails, and his opinion must fall with the inaccurate 
fio-ure which he uses to illustrate his views. 

Our opinion is, that Portugal was bound, by the law of nations, 
to make to the claimants pecuniary compensation. 

The proposition to refer this case to an arbitrator, came from the 
Portuguese government. The course of the United States had 
been consistent throughout. We had always maintained that we 
bad a valid claim upon Portugal ; that the facts showed that the 
British were the aggressors, and that, by the law of nations, Portu- 
gal was bound to redress the injury sustained by our citizens. The 
first remark on the subject of an arbitration we have found, is ia 
Mr. Clayton s letter of the 8th of March, 1850, when he wrote to 
Mr. Clay, the American charge d'affaires at Lisbon : " In regard to 
a reference of our claims to an arbitrator, which has been indicated, 
the President has directed me to say that no such course will, under 



Decision of judge GiLcnRisT. 189 

the circumstances, receive his sanction ; and this for reasons too 
obvious to need enumeration." On the 30th of April, he wrote to 
the Portuguese minister at Washington, that the matter would be 
referred to Congress^ "should the Portuguese government persevere 
in the refusal to adjust and and settle what are believed to be the 
incontrovertible claims of American citizens upon that government," 
and he rejected the proposition of the minister to submit this claim 
to arbitration. 

The treaty between the United States and Portugal was conclu- 
ded on the 26th of February, 1851. The first article provides that 
Portugal shall pay to the United States a sum equivalent to the in- 
demnities claimed for several American citizens. By the second 
article it is agreed that the parties, " not being able to come to an 
agreement upon the question of public law involved in the case of 
the American privateer brig General Armstrong, that the claia 
presented by the American government, in behalf of the captain, 
officers, and crew of the said privateer, should be submitted to the 
arbitrament of a sovereign, potentate, or chief of some nation in 
amity with both the high coiitrating parties." 

In relation to the arbitration we may remark, that in whatever 
we may say upon the subject, we do not mean to be understood as 
denying the right of the government of the United States, acting 
for the whole people, to submit to arbitration any controversy with 
a foreign government, in which pubhc interests are alone involved. 
Nor is it necessary to deny the power of the United States to sub- 
rait to arbitration the claim of one of its own citizens upon a for- 
eign government which it has been prosecuting, in such a way as to 
preclude itself from again pressing that claim uj)on such foreign 
government, or insisting upon it in any way as a cause of war, or a 
matter of national concern. There is a broad distinction between 
the submission of a case involving national interests exclusively, 
and the submission of a case relating to private rights alone, where 
the only matter of public concern is the general duty of a govern- 
ment to protect its citizens. Where a case of the latter description 



190 BEIG GENERAL ARMSTRONG. 

is submitted, it must be done with a due regard to the rights of the 
citizen. If his rights be disregarded and sacrificed, it is the dictate 
alike of law, common sense, and justice, that the goyernment by 
which his rights have been sacrificed, should make him restitution. 
We think it cannot be denied, that to relieve a government from 
liability to a citizen on this account, it should appear that the case 
was one proper to be submitted ; that he bad an opportunity of 
being heard before the arbitrator by argument and proofs ; that the 
award was certain, definite, and within the submission ; and that 
the arbitrator did not exceed his powers. 

In the first place, we are unable to perceive what good and suffi* 
cient reasons there were, that required the United States to submit 
the claims of their citizens upon a foreign government to arbitra- 
tion. We find no reasons alleged in the correspondence that led to 
the submission. A citizen of this republic is entitled to ask his 
government, respectfully, why a given course was pursued in rela- 
tion to his private rights. The government holds its public powers 
by no higher tenure than the citizen possesses his private rights. 
Public powers are delegated, and private rights are possessed, by 
the will and assent of the people. The day is gone by, at least on 
this side the Atlantic, when the rights and interests of millions can 
be settled definitely by diplomatists in secret session, and when no 
other answer to a complaint is condescended, than that such mat- 
ters are mysteries of State, into which even the party aggrieved 
has no right to inquire. We intrust our public interests to our 
public officers, in the confidence that they will discharge their duty. 
If those duties are neglected or mismanaged, we find a remedy in 
the ballot-box. But when a citizen has a claim upon a foreign 
government, which, from the nature of the case, as he is powerless 
against the foreign government, can only be redressed through the 
agency of his own government, and that claim is sacrificed by his 
government, he has no remedy, unless his government will indem- 
nify him. He may, surely, with propriety, ask the question, why 
hia claim was submitted ? In the present case, that the British 



DECISION OE JUDGE GILCHKIST. I9I 

were the aggressors was a fact, patent, known at the time to 
• hundreds of persons, which we had always asserted to be true, and 
which the evidence proves to be true. No impartial man can 
investigate the evidence and reach any other conclusion. Not only 
is the evidence on the point overwhelming, but such has always 
been the position taken by the United States from 1814 to 1841, by 
every administration, every Secretary of State, every American 
minister, and, until the year 1843, admitted to be true by the Por- 
tuguese government itself. If, as Mr. Webster wrote to Mr. Barrow 
on the 13th of January, 1842, the justice of this claim had never 
been denied, why did that eminent man consent to submit it to 
arbitration ? What call was there upon him to put it out of the 
power of the United States to perform that first and most sacred 
of duties, protection of the rights of the humblest citizen. A party 
who has a claim, of which no one denies the justice, is a most 
nnfit manager of his business, when he submits it to arbitration, 
and thereby gives the arbitrator a discretionary authority to allow 
or reject it at his pleasure. We had always asserted that Portugal 
was bound by the law of nations to redress this injury; and there is 
nothing in any part of the diplomatic correspondence on our part 
that tends to show that we ever intended to recede from this posi- 
tion. We had positively asserted that both the law and the facts 
were with us. We had expressed our views in every form. We had 
presented a firm, but temperate statement. We had resorted to 
argument. We had, finally, asserted our fixed determination that 
the injuries of our citizens must be redressed. Such being our posi- 
tion, the inquiry may properly be made, why the various questions 
in this case, involving the private rights of American citizens, 
should be exposed to the hazard of being loosely and partially con- 
sidered by an European sovereign who, to say the least, would be 
as likely to be influenced by considerations of state policy as by a 
regard to individual rights. If the government did not see fit to 
have recourse to arms to enforce the claim, they might, at least, 
have abstained from compromising the rights of the claimants. 



192 BRIG GENERAL ARMSTRONG. 

But when the gOTernment were convinced that the facts were as the 
claimants alleged, the conclusion of law followed of course. The 
claimants alleged that the British were the aggressors. The gov- 
ernment believed that such was the case, and that Portugal was 
bound to pay the claim. These positions, then, being distinctly 
taken, it may safely be said, that if this was a proper case for a 
submission, no ca*e ever existed that would justify a resort to hos- 
tilities, so long as an arbitrator could be procured to determine the 
controversy. 

But whether this case was, in itself, under the circumstances, 
proper to be submitted to arbitration, there is a further view to be 
taken of the submission. 

On the 13th day of April, 1850 (Doc. 53, page 56), Count 
Tojal wrote to Mr. Clay that the Portuguese government " will 
now propose to refer this affair to tlie decision of a third power." 
In his letter of July 6, 1850 (Doc. 53, page 13), Count Tojal 
refers to several claims of American citizens upon Portugal. A 
list of them is given, with the amount claimed in each. They are 
ten in number, and the aggregate amount was $233, 32T. The 
amount claimed in the case of the General Armstrong was $131,600. 
The others amounted to $91,127. Count Tojal then says : " The 
government of her majesty, animated with the same desire, etc., 
yields to the force of circumstances, and without again reverting to 
the justice or injustice of the claims presented by the government 
of the United States, and only pro bono pads, offers to pay the said 
mentioned claims, amounting to $91,121, according to Mr. Clay's 
account, with the only exception of that relating to the privateer 
General Armstrong. In respect to this claim the undersigned can- 
not deviate from the proposal heretofore made to Mr. Clay, that 
of so important a claim being submitted to the decision of a third 
power." 

It is to be noticed that the justice and legality of the claims, 
which Count Tojal thus offered to pay, had been denied as strenu- 
ously as the claim relating to the General Armstrong. Why the 



DECISION OF JUDGE GILCHRIST. I93 

Portuguese government were unwilling to pay this claim, is indicated 
bj the following extract from the same letter of Count Tojal ■ 
" Her majesty's government, besides the arguments contained in the 
notes formerly addressed to the government of the United States 
finds Its Judgment, and the manner of weighing the question of the 
privateer General Armstrong, strengthened with the opinion of her 
Bntanmc majesty's government, which has always deemed this claim 
of the government of the United States unjust." Why, a^ain it 
was necessary for Portugal to ask the opinion of England, is^shown 
by another extract from Count Tojal's letter, in which he says • 
" The subsisting relations between her most faithful majesty's "-ov- 
ernment and that of her Britannic majesty, ohlige the undersigned 
to commumcate to the British government all that has taken place." 
But whatever influences operated upon the Portuguese govern- 
ment, and it is not difficult to appreciate them, the proposition made 
by Count Tojal was not divisible. It was complete in itself. It 
was not an absolute proposal to pay the other claims, but to pay 
them, and to submit this to arbitration. As Portugal had, up 
to the time of the proposition, invariably denied the justice of 
the other claims, and as she said she offered to pay them and submit 
this, only pro bono pads, we could not have called on her to pay 
the other claims, unless we agreed to submit this to arbitration. It 
would have been unreasonable in the extreme if our government had 
called upon Portugal to pay the other claims without agreeing to 
submit this. But that the proposal was one and indivisible is, we 
think, too clear to admit of question, or to need argument in its 
support. When, therefore, our government decided to accept the 
proposal, as it did, by Mr. Webster's letter of the 23d of Au"-ust 
1850, it assumed the right, which, in the present case, we are not 
disposed to deny or inquire into, of exposing the claim of the own- 
ers of the General Armstrong to the chauces of an arbitration, for 
the purpose of procuring thereby the settlement of the remaining- 
claims upon Portugal, and of putting an end to all embarrassing 
negotiations with that power. 



14 



194: BBIG GENERAL ARMSTRONG. 

The case docs not call upon us to deny the right of the United 
States to submit to arbitration the claim of a citizen upon a foreign 
government without his assent, or even against his protest, and the 
qnestion need not be investigated. Of course, his assent would 
estop him afterwards from objecting that a submission was entered 
into. As there is evidence upon this point, we have examined it 
for the purpose of showing the relative position of the claimants and 
the United States. 

On the 5th of September, 1850, Mr. Reid, the agent for the 
claimants, wrote to Mr. Webster : " I perceive it is proposed to 
refer the claim of the owners of the brig General Armstrong to the 
King of Sweden for arbitration. I hope the Department of State 
will make no final arrangements in this case, under the present cir- 
cumstances, and I desire that it may be left open until I can have a 
conference with you on the subject. * * * * I hope no steps 
will be taken which will compromise the rights of the claimants, until 
I can have the pleasure of seeing you." To this letter Mr. Webster 
answered, on the 13th of September, that the proposition of Count 
Tojal to pay the several claims preferred by the American govern- 
ment against that of Portugal, with the exception alone of that of 
the General Armstrong, which was to be referred to the King of 
Sweden etc., had already been accepted by the government. 

We look in vain here for any evidence of assent to the submission. 
When Mr. Reid hears that it is proposed to submit the claim, he 
hopes that the matter will be left open until he . can have a confer- 
ence with Mr. Webster, and that no steps will be taken that will 
compromise the rights of the claimants until he can see him. Do 
these words mean the very reverse of what they express ? Does 
Mr Reid mean, when he uses this language, to say that he assents 
to the submission ? If so, language was given us to disguise our 
thoughts, and not to express them. But not only does he not 
assent to the submission, but it was agreed to without any opportu- 
nity for him to assent or dissent, and without his knowing anything 
about it ; for Mr. Webster informs him that the proposal of Count 



DECISION OF JUDGE GILCHRIST. 195 

Tojal had already beeu accepted. If there ever were a plain case 
of dissent, it is furnished by Mr. Reid's letter. There is no evidence 
of his acquiescence in the submission, for all he did was to request 
that he might be heard before the arbitrator, after he was informed 
that the treaty had been concluded. 

It may be proper to notice, in this connection, a position taken by 
the solicitor, that a claimant, in a case like this, is conclusively 
bound by the action of his government. In the instructions to Mr. 
Kavanagh, of the 21st of September, 1836, Mr. Forsyth says : "It 
is well understood that after asking the interference of their govern- 
ment to procure redress for the injuries they supposed themselves to 
have sustained, the parties mast abide by such settlements as that 
government may make." This proposition cannot be correct in the 
broad language used. No individual can urge his claims upon a 
foreign government with any hope of success, excepting that derived 
from their sense of justice. A private person, armed with no power 
of enforcing his rights, and unassisted by his own government, can-" 
not speak in sufficiently impressive tones to ensure his being heard 
by a foreign nation. His own government, in the discharge of that 
duty of protection which it owes to its citizens, must speak for him. 
" If any comi^laint is to be made on the part of the captured, it 
must be by his government to the neutral government for a fraudu- 
lent or unworthy or unnecessary submission to a violation of its 
territory." 1 Kmth Com., 121. If Mr. Forsyth's statement be 
correct, the government would be justified in making use of and 
surrendering the claim of one of its citizens for the purpose of pro- 
curing the payment of the claim of another. If, by saying that 
"the parties must abide by such settlements as the government may 
make," it be meant only that the party, after such settlement has 
been made, cannot enforce his claim against the foreign state, 
the position is correct. But if it be meant that, whatever settle- 
ment the government of the claimant may make, it incurs no respon- 
sibility for the claim of its own citizens, the doctrine cannot be 
admitted. In the case of the Baron De Bode vs. Regina, IT Eng. 



19g BKIG GENERAL ARMSTEOHG. 

L. & Eq. Rep., 14, Lord St Leonards, the Lord Chancellor, said ', 
" It is admitted law that if the subject of a country be spoliated by 
a foreign gorerument, he is entitled to obtain redress from the for- 
eign government through the means of his own government. Bat 
if, from weakness, timidity, or any other cause on the part of his own 
government, no redress is obtained from the foreigner, then he has a 
claim against his own country. Here is a compromise of the two 
governments ; the question is, how far his claim is affected by it." 
It cannot be supposed, however, that Mr. Forsyth intended to con- 
vey the idea that whatever course the government might pursue, in 
no event would it be liable to the claimant. Such a proposition 
would be, in substance, that the government is not responsible for 
wrong ; a ground which, we presume, no one would seriously attempt 

to maintain. 

Before examining the objections that have been made to the 
award, it is proper to consider the position taken by the claimants, 
that they were not permitted to be heard before the arbitrator. 

The treaty having been ratified by the Senate on the 1th of 
March, 1851, on the 19th of March Mr. Webster wrote his letter 
of instruction to Mr. Hadduck, who had succeeded Mr. Clay as our 
charge at Portugal. The material part of this letter refers to the 
third article of the treaty, which is as follows : 

" So soon as the consent of the sovereign, potentate, or chief of 
some friendly nation who shall be chosen by the two high contract- 
ing parties, shall have been obtained to act as arbiter in the afore- 
said case of the privateer brig " General Armstrong," copies of all 
correspondence which has passed, in reference to said claim, between 
the two governments, shall be laid before the arbiter, to whose 
decision the two high contracting parties hereby bind themselves to 

submit." 

Mr. Webster directs Mr. Hadduck " to compare and authenti- 
cate, jointly with the Portuguese government, the copies therein 
specified. You will understand, of course, that these copies are 
limited to such communications as have passed between the Amer- 



DECISION OF JUDGE GILCHRIST. 197 

jcaa legation and the Portuguese government at Lisbon, and 
between this department and the Portuguese legation in Washing- 
ton." On the 12th of July, 1851, Mr. Webster wrote to Mr. Had- 
duck, and after stating the instructions contained in his previous 
letter, says : " To provide, however, against an omission of any 
important part of the earlier portion of the correspondence — I mean 
that which passed in 1814 and 1815, in Rio Janeiro, where the 
court of Portugal at that time resided, and which it could not have 
been intended to exclude — I transmit to you herewith a printed 
copy of the correspondence as communicated to Congress on the 15th 
December, 1845." This letter, however, reached Mr. Hadduck too 
late, as the treaty had been signed on the 23d of June previous. 
The papers omitted where the whole of document 14 of the Senate, 
1st session 29th Congress, covering fifty-eight pages. It is said 
that the whole of this document is contained in substance in the 
subsequent correspondence. One letter, however, was omitted, 
upon which much stress was laid in the argument on the question of 
fact, as to the party who made the first aggression. This was the 
letter from Mr. Greaves, the British consul, dated on the 27th of 
September, 1814, to the governor of the Azores, informing him that if 
the governor should permit the masts to be taken from the schooner, 
the commander of the squadron would regard the island as aa 
enemy of his Britannic majesty, and would treat the town and 
castle accordingly. This was relied upon as tending to prove that 
Captain Lloyd desired to capture the brig and use her in his opera- 
tions against this country. 

But, not only was no provision made for laying before the arbi- 
trator all the correspondence which might throw light upon the case, 
but the claimants were refused the privilege of being heard before 
the authority which was to decide upon their rights. Upon the tth 
of July, 1851, the agent of the claimants filed, at the Department 
of State, a written argument and statement of facts, which he 
requested might be sent to our minister, that he might submit it to 
the arbitrator, which was verbally refused, on the ground that the 



198 BSia GENERAL ABMSTKONQ. 

terms of the treaty precluded it. To two notes to the Secretary of 
State, to the same effect, he received no answer. He then request- 
ed the President that he might be sent to France with the papers 
and documents, that he might present his case through Mr, Rives ; 
but this was also refused. 

It may well be asked here, why was the case so submitted that 
the party interested could not be heard ? If the United States, in 
the plenitude of their power, see fit to submit the claim of a citizen 
to arbitration without his assent, ought they not to make the most 
careful and ample provision that he shall be fully and fairly heard, 
and that he shall have all reasonable opportunity to lay before the 
arbitrator the evidence on which he relies ? An award made with- 
out the party having had an opportunity to be heard, rests neither 
upon law nor justice. If the case was sufficiently national in its 
bearings to be submitted to the arbitration of an European prince, 
it was, surely, important enough to deserve a careful investigation 
into the facts, and the parties, whose pecuniary interests were invol- 
ved, were the very persons, of all others, to whom to intrust such 
an investigation. 

The position that every party should have an opportunity to be 

heard before the tribunal that is to pass judgment on his rights, needs 

uo labored argument to support it. It has been repeatedly asserted 

by the most eminent jurists. In Rigden vs. Martin, 6 H. & Johns., 

403, the court said : " that the parties ought to have notice of the 

time of meeting, is a position so strongly supported by common justice 

that it would seem not to require the aid of authorities. Every 

man ought to have an opportunity afforded him to be heard in 

defence of his rights." In Falconer vs. Montgomery, 4 Dallas, 232, 

it is said : " The plainest dictates of natural justice must prescribe 

to every tribunal the law that ' no man shall be condemned unheard.* 

It is not merely an abstract rule, or positive right, but it is the 

result of long experience and a wise attention to the feelings and 

dispositions of human nature. ♦ * * Besides, there is scarcely 

a piece of written evidence, or a sentence of oral testimony, that is 



DECISION OF JUDGE GILCHRIST, 199 

not susceptible of some explanation, or exposed to some coutradic- 
tion ; there is scarcely au argument that may not be elucidated so 
as to ensure success, or coutroverted so as to prevent it. To ex- 
clude the party, therefore, from the opportunity of interposing in 
any of these modes (which' the most candid and intelligent, but a 
disinterested person, may easily overlook) is not only a privation of, 
his right, but an act of injustice to the umpire, whose mind might 
be materially uiflueuced by such an interposition." In the case of 
Lutz vs. Linthicum, 8 Peters, 178, Mr. Justice Story said : 
" Without question, due notice should be given to the parties of the 
time and place of hearing the cause ; and if the award was made 
without such notice, it ought, upon the plainest principles of justice, 
to be set aside." lu Elmeudorf vs. Harris, 23 Wend., 628, it was 
laid down as a fundamental rule of construction in reference to every 
transaction in the nature of a judicial proceeding, that the contract 
of submission necessarily implies that the arbitrator is not author- 
ized or empowered to decide the question in controversy, without 
giving the parties an opportunity to be heard in relation thereto. 

Mr. Webster's construction of the 3d article of the treaty, which 
provided that the copies of the correspondence should be laid before 
the arbiter, excluded the presentation of any argument. But the 
article contains no words of exclusion, and it is cot to be presumed 
that the arbiter would have refused to consider an argument for the 
claimants. The government refused to sanction, in any manner, the 
presentment of the case of the claimants to the arbiter, and with- 
out such sanction, no private person would be permitted to intervene, 
of his own authority, between two nations. If Mr. Webster's con- 
struction be correct, then such a treaty, in violation bf the plainest 
principles of justice, should not have been made. If his construc- 
tion be wrong, then the agent was most unjustifiably hindered by 
the government from presenting his case. Whatever may be the 
true construction of the article, the claimants have suffered a wrong 
at the hands of the government, for which reparation should be 
made them. 



200 BRIG GENERAL ARMSTRONG. 

We come now to the consideratioa of the award, and it is neces- 
sary, iu the first place, to ascertain the matter submitted to the arbi- 
trator. 

The second article of the treaty is as follows : 

" The high contracting parties not being able to come to an agree- 

.ment upon the question of public law involved in the case of the 

American privateer brig General Armstrong, etc, have consented 

that the claim presented by the American government, etc., should 

be submitted to the arbitrament of a sovereign," etc. 

The claim, then, was submitted, because the parties could not agree 
upon the question of law ; it was not because they could not agree up- 
on the facts, or the amount of the claim. Thus the matter in dispute was 
the simple question of law. As that question should be determined, so 
must be the award of the arbitrator. But that question was not 
determined at all, the award being founded solely upon the facts. If 
this construction of the submission be correct, it follows that the award 
is void : firstly, because it does not settle the matter in dispute, and 
the matter submitted ; and secondly, because it does settle the question 
of fact, which was not submitted, and thus exceeds the submission. 

But there is another view to be taken of the submission. Al- 
though the question of law was that about which the parties 
were unable to agree, the claim was submitted, and this compre- 
hends both the question of law and the question of fact. Having 
found the question of fact against the claimants, it is urged that 
this decision, involving the fact that the Americans were the aggres- 
sors, is conclusive against the claimants. Such would undoubtedly 
be the case if the claimants had the priviledge of being heard, by 
laying before the arbitrator their argument and proofs. But it is 
to be remembered, that in this case, not only was the submission 
made without the assent of the claimants — not only were they denied 
all opportunity of appearing before the arbitrator — but the case, 
during all the period from the submission to the award, was in no 
condition to be heard. It had never been prepared for trial. The 
cbimants had done all that was necessary for their immediate pur- 



DECISION OF JUDGE GILCHRIST. 201 

pose : they had presented their claim to their own government, and 
had requested that it might be urged upon the government of Portu- 
gal. Mr. Webster did not suppose that all the evidence had been 
furnished on which the claimants rested their case, for on the 15th 
of January, 1842, he wrote to Mr. Barrow : " If the inadmissibility 
of the claim is made to depend upon the defect of evidence, or 
upon any other cause, you will ascertain precisely what further evi- 
dence is required in addition to that which has already been com- 
municated by Captain Reid, and will be found on file in your lega- 
tion." The transaction occured in the harbor of Fayal, near to the 
shore, on a moonlight evening, and in the presence of innumerable 
witnesses. If the facts were to be contested, the claimants should 
have had the opportunity of procuring the testimony of those who 
witnessed the affair, and of placing their case in the most favora- 
ble light. This privilege not denied to the humblest suitor, in the 
most pretty controversy. It has been denied to these claimants by 
the action of their governmei^t. They are remediless as to Portu- 
gal, for all claim is barred by the action under the treaty. Their 
just rights have been disregarded and sacrificed by the United States • 
and the question then arises, whether the United States are bound 
to make them compensation. 

• In relation to this point, we have the facts that the British were 
the aggressors ; that the owners of the brig had a valid claim upon 
Portugal for indemnity ; that the claim was submitted to arbitra- 
tion by virtue of the power of the United States to do so, without 
the assent of the claimants ; that the treaty was so worded as, by 
Mr. Webster's construction, to deprive the claimants of all ojiportu- 
uity of being heard in any manner ; that the United States refused 
to sanction their application to be heard ; that they were not heard ; 
that the award was made without their privity, in their absence, and 
in violation of the universal principle that no one shall be condemned 
unheard ; and that they were entitled to be heard upon every prin- 
ciple of private justice, public law, and that regard to equity and 
fair dealing, without which, neither a nation nor an individual can 



202 BKia GENEKA.L ARMSTKONG. 

ever be respected. It is entirely immaterial whether the question 
bubmitted was one of law or of fact. Even if we admit, for the sake 
of the argument, that upon the evidence now before us, it was doubt- 
ful which party was the aggressor, and even if we admit in the same 
way that the validity of the claim upon Portugal was a doubtful 
question, that does not at all affect the right of the party interested 
to be heard. So much the greater call was there upon the United 
States to provide that they should be heard. The principles of jus- 
tice are universal, and not local. They are as binding upon the 
Emperor of the French as upon the humblest tribunal. Every step 
in this affair, from the acceptance of the proposal by Portugal to 
submit the case, to the ratification of the treaty, was the act of the 
United States alone. The award having been made against the 
United States, they are answerable to the claimants for the loss they 
have sustained, upon the principle that a nation, being entitled to 
the allegiance and obedience of its citizens, is solemnly bound, in 
return, to protect, not only their person, but their property. It is 
said by Vattel (ch. 2, § 17) : " If a nation is obliged to preserve 
itself, it is no less obliged carefully to preserve all its members. 
The nation owes this to itself, since the loss even of one of its mem- 
bers weakens it, and is injurious to its preservation. It owes this 
also to its members in particular, in consequence of the very act of • 
association ; for those who compose a nation, are united for their 
defence and common advantage ; and none can justly be deprived 
of this union, and of the advantages he expects to derive from it, 
while he, on his side, fulfills the conditions. The body of a nation 
cannot then abandon a province, a town, or even a single individual 
who is a pan of it, unless compelled to do it by necessity, or indis- 
pensably obliged to it by the strongest reasons, founded on the 
public safety," 

It is on this duty of protection that the duty of allegiance depends. 
Wc owe allegiance to the country where we were born, where we 
were educated, and under the protection of whose laws we live. To 
it we owe the sacrifice of our comfort, our property, and our lives. 



DISSENTING OPINION OF JDDQE BLACKFOED. 203 

when the occasion requires it. And it is from the existence of these 
comprehensive duties on our part, that the reciprocal duty of pro- 
tection arises. Our country is bound to protect our rights as 
individuals ; and if this protection be not afforded us, she is bound to 
render us such an equivalent as it is in her power to bestow. Agaiust 
another nation she is bound to assert our claims, for she alone can 
. meet such an antagonist on equal terms. If she neglects the sacred 
duty of protecting us in our rights, she is bound to make us compen- 
sation. These principles are not recent discoveries. They are as 
old as the institution of civil government. Their recognition by a 
state is the surest and firmest bond by which the citizen is attached 
to his government and his country. They embody the same idea 
expressed by the Lord Chancellor in the case of the Baron de Bode, 
to which we have referred, that " if, from weakness, timidity, or any 
other cause, on the part of his own government, no redress is 
obtained from the foreigner, he (the citizen) has a claim against his 
own country." In the case of i'urnam vs. Brooks, 9 Pick., p. 239, 
Parker, C. J., intimates an opinion that there is an obligation on the 
government of the United States to procure redress for its citizens, 
or itself to reimburse them. 

In relation to the question of damages, no evidence has been laid 
before us. The sum claimed of Portugal is mentioned in the corres- 
pondence, but no proof of the damages sustained appears in the case. 
Upon this poinc testimony must be taken. 



-♦►- 



DISSENTING OPINION DELIVERED BY JUDGE BLIACKFORD. 

I dissent from the judgment of the court in this case. 

This is a claim against the United States for one hundred and 
thirty-one thousaud, six hundred dollars. The claim is presented by 
Samuel C. Reid, on behalf of himself and of the owners, officers, 
and crew of the American privateer General Armstrong. 



204: BRIG GENERAL ARMSTRONG. 

This privateer, oa the 26th and S'lth days of September, 1814, 
during the last war between the United States and Grfeat Britain, 
was destroyed by certain British ships of war in a harbor of the 
island of Fayal. The kingdom of Portugal, to which Fayal 
belonged, was, at the time, a neutral nation ; and, consequently, 
the combat of the belligerents, in which the privateer was destroyed, 
was a violation of the laws of nations. The commencement of this 
conflict was between the privateer and a boat or boats of the 
British ships, in which first encounter there were a few persons 
killed and some wounded. But the governor of the island knew 
nothing of these first acts of hostility until after they had occurred. 
As soon as be was informed of their occurrence, he used every exer- 
tion in his power, by peaceable measures, to prevent any further 
hostile acts by the British, but without success. He did not, to be 
sure, resort to force ; and it is evident, that owing to the want of 
means, he could not, by force, have prevented the disaster which 
ensued. 

On said 27th of September, 1814, Samuel C. Reid, the captain 
of the privateer, entered bis written protest, in which he charged 
the British vessels with being the aggressors. This protest is 
sworn to by the captain, the first and third lieutenants, the sailing 
master, surgeon, captain of marines, and four prize masters of the 
brig. There are, also, as to the aggression, the statements of the 
American consul and of the governor of Fayal. On the other 
hand, a lieutenant of the British navy, and commander of a barge, 
engaged in the conflict, together with the master and one of the 
seamen of the barge, made oath, on said 21th of September, 1814, 
before the British consul at Fayal, showing, if their statements be 
true, the privateer to have been the aggressor. 

On the 19th of December, 1814, Jenkins & Havens, as agents 
of those concerned in the privateer, requested the government of 
the United States to demand of Portugal compensation for the 
damage sustained by the loss of the vessel. 

It appears by a letter of the Portuguese minister of the 22d of 



DISSENTING OPINION OF JUDGE BLACKFORD. 206 

December, 1814, that the Prince Regent of Portugal, upon infor- 
mation of the governor of Fayal, had directed his minister in 
London to require of the British government "satisfaction and 
indemnification, not only for his subjects, but for the American 
privateer, whose security was guaranteed by the safeguard of a 
neutral port." 

On the day after the date of that letter, the Portuguese minister 
enclosed to Mr. Sumter, the American minister at Rio Janeiro, a 
copy of the advices received from the governor of Fayal respecting 
the destruction of the privateer, with a communication, sayinc : 
"His royal highness, however, flatters himself that the citizens 
of the United States will not have reason to complain of the Portu- 
guese governor in that conflict, having used his utmost power to 
prevent the evil that occurred. The British government refused 
the indemnification demanded by Portugal for the loss of the priva- 
teer, alleging, according to Count Tojal, that the conduct of Com- 
modore Lloyd was fully justified as a mere act of retaliation, pro- 
voked by the hostilities previously commenced by Captain Reid. 

On the 3d of January, 1815, Mr. Monroe, Secretary of State, 
instructed Mr. Sumter, the American minister aforesaid, " to bring 
all the circumstances of the transaction distinctly to the view of the 
Portuguese government, and to state the claim which the injured 
party had to immediate indemnification." In December following, 
Mr. Sumter wrote to Mr. Monroe as follows ; " I have not had the 
good fortune to receive any letter from your department of a later 
date than that of the 3d of January last, which related solely to 
the reclamation to be made in favor of the General Armstrong pri- 
vateer destroyed by the British at Payal. You will have seen by 
my note of the first of January, that I had already attended to 
that affair. Others of a similar kind have been represented since. 
The only answer I have yet obtained is, that inquiry has been 
ordered in the other cases ; and that a demand of satisfaction had 
been made in the case of the Armstrong." In 1818, Mr. Adams, 
Secretary of State, wrote to the Portuguese minister relative to the 



206 BRIG GENERAL ARMSTRONG. 

claim, concluding his note as follows : " It is hoped yonr govefn- 
ment will, without further delay, grant to the sufferers by that 
transaction, the full indemnity to which they are, by the laws of 
nations, entitled." In 1837, Mr. Kavanagh, our charge d'affaires 
at Lisbon, in compliance with his instructions, demanded of Portu- 
gal satisfaction for said injury. 

In 1841, Captain Reid, as agent aforesaid, wrote to Mr. Web* 
Bter, Secretary of State, informing him that the President had been 
applied to " concerning their claims upon the Portuguese govern- 
ment, for the entire loss of that vessel," and urging Mr. Webster 
to assist the claimants. Mr. Webster, accordingly, in January, 

1842, instructed Mr. Barrow, our charge d'affaires at Lisbon, to 
present the claim to the Minister of Foreign Affairs, which instruc- 
tion was complied with in May, 1842. The Portuguese minister, in 

1843, refused the demand, alleging that the privateer was the 
aggressor, and that the Portuguese authorities had used every 
means in their power to prevent the deed. In 1844, the Secretary 
of State, Mr. Upshur, wrote to Samuel C. Reid, Jr., as follows : 

Department of State, 

Washinffton, January 10, 1844. 

Sib : At the repeated instance of yourself and others, interested in the 
case of the privateer General Armstrong, this government has again and 
again instructed its representatives at Lisbon to bring the claim to the notice 
of the government of Portugal. This has been done, and every argument has 
been employed to induce Portugal to acknowledge the justice of the claim, 
and to make due reparation. All these efforts, of which you are well aware, 
have proved unavailing, and the Department of State is unwilling, under all 
the circumstances, to renew the application, having every reason to believe 
that all future applications will prove as fruitless as those that are past. 
Argument and importunity have been exhausted, and this government can 
Bee nothing iu the circumstances to justify or warrant it in having recourse 
to any other weapons. 

I am, sir, your obedient servant, 

A. P. Upshur, 
SiJiUEL C. Reid, Jr., Esq., New Orleans, 



DISSENTING OPINION OF JUDGE BLACKFORD. 207 

The gentleman, however, to whom the above letter was addressed, 
endeavored, by his subsequent letters, to persuade our government 
to continue the negotiation with Portugal. But Mr. Calhoun, the 
Buccessor of Mr. Upshur in the State Department, took the same 
view of the subject with Mr. Upshur. In a letter to Mr. Johnson, 
of Louisiana, Mr. Calhoun says : " The case of the General Arm- 
strong was disposed of by my predecessor upon grounds which 
appear to me to be judicious and proper. Of this, Mr. Reid has 
been duly informed ; and I can see no good reason, under the cir- 
cumstances, for renewing the claim, or for continuing a correspon- 
dence on the subject." 

In 1849, this claim against Portugal was renewed at Lisbon, in 
pursuance of instructions from Mr. Clayton, Secretary of State, but 
without success. In April, 1850, on the demand being again made 
by our government, Portugal offered to refer the matter to arbitra- 
tion, mentioning the King of Sweden as the arbitrator. The offer 
was rejected. In July, 1850, another proposition to refer the case 
to arbitration was made by Portugal. This last proposition was, 
on the 5th of September of the same year, accepted by Mr. Web- 
ster, then Secretary of State. A treaty was accordingly, on the 
26th of February, 1851, entered into between the two governments, 
by which the said claim against Portugal was submitted to the 
arbitrament of some sovereign, potentate, or chief, of some nation 
in amity with both the high contracting parties. 

The President of the French Republic, Louis Napoleon, was 
afterwards selected as the arbiter, and he consented to discharge 
the dnty. On the 11th of December, 1852, the arbiter caused to 
be delivered, at Paris, to the respective ministers of the United 
States and Portugal, his award in favor of Portugal, as follows : 

TRANSLATION OF THE AWARD OF PRESIDENT NAPOLEON, IN THE CASE OF THE 



GENERAL ARMSTRONG. 



)) 



We, Louis Napoleon, President of the French Republic : 
The Government of the United States, and that of her Majesty the Queen 
of Portugal and of the Algarves, having, by the terms of a convention pign^d 



208 BEIG GENERAL AEMSTBOKG. 

at Washington on the 2Cth of February, 1851, asked us to pronounce aa 
arbiter upon a claim relative to the American privateer " General Armstrong," 
which was destroyed in the port of Fayal, on the 27th of September, 1814 ; 
after having caused ourself to be correctly and circumstantially informed in 
regard to the facts which have been the cause of the difference, and after 
having maturely examined the documents duly signed in the name of the two 
parties, which have been submitted to our inspection by the representatives of 
both powers, considering that it is clear( in fact, that the United States were 
at war with her Britannic Majesty, and her most faithful Majesty preserving 
her neutrality, the American brig, the " General Armstrong," commanded by 
Captain Reid, legally provided with letters of marque, and armed for priva- 
teering purposes, having sailed from the port of New York, did, on the 26th 
of September, 1814, cast Anchor in the port of Fayal, one of the Azores 
Islands, constituting part of her most faithful Majesty's dominions ; 

That it is equally clear that, on the evening of the same day, an English 
squadron, commanded by Commodore Lloyd, entered the same port ; 

That it is no less certain that during the following night, regardless of the 
rights of sovereignty and neutrality of her most faithful Majesty, a bloody 
encounter took place between the Americans and the English ; and that on 
the following day, the 27th of September, one of the vessels belonging to the 
English squadron came to range herself near the American privateer for the 
purpose of cannonading her ; that this demonstration, accompanied by the 
act, determined Captain Reid, followed by his crew, to abandon his vessel 
and to destroy her ; 

Considering that if it be clear that, on the night of the 2Gth of September, 
some English long boats, commanded by Lieutenant Robert Fausset, of the 
British navy, approached the American brig, the " General Armstrong," it ia 
not certain that the men who manned the boats aforesaid, were provided with 
arms and ammunition ; 

That it is evident, in fact, from the documents which have been exhibited 
that the aforesaid long boats, having approached the American brig, the crew 
of the latter, after having hailed them and summoned them to be off, imme- 
diately fired upon them, and that some men were killed on board the English 
boats, and others wounded— some of whom mortally — without any attempt 
having been made on the part of the crew of the boats to repel at once force 
by force ; 

Considering that the report of the governor of Fayal proves that the 
American captain did not apply to the Portuguese government for protec- 
tion until blood had already been shed, and, when the fire had ceased, the 



DISSENTING OPINION OF JUDGE BLACKFOKD. 209 

brig -. General Armstrong " came to anchor under the castle at a distance of 
a tone's throw ; that said governor states, that it was only then, that he was 
informed of what was passing in the port , that he did, on several occasions 
laterpose w:th Commodore Lloyd, with a view of obtaining a cessation of' 
hostilities, and to complain of the violation of a neutral territory • 

That he effectively prevented some American sailors, who we're on land 
rom embarking on board the American brig, for the purpose of prolonging a 
conflict which was contrary to the law of nations ; 

That the weakness of the garrison of the island, and the constant disman- 
tling of the forts, by the removal of the guns which guarded them, rendered 
all armed intervention on his part impossible ; 

Considering, in this state of things, that ciptain Reid, not having applied 
from the beginning for the intervention of the neutral sovereign, and havin. 
had recourse to arms in order to repel an unjust aggression of which he pre- 
tended to be the object, has thus failed to respect the neutrality of the terri 
tory of the foreign sovereign, and released that sovereign of the obligation in 
which he was to afford him protection by any other means than that of a 
pacific intervention ; 

From which it follows, that the government of her most faithful Majesty 
cannot be held responsible for the results of the collision which took place in 
contempt of her rights of sovereignty, in violation of the neutrality of her 
territory, and without the local officers or lieutenants having been required 
in proper time, and enabled to grant aid and protection to those having a 
right to the same ; 

Therefore, we have decided, and we declare, that the claim presented by 
the government of the United States against her most faithful Majesty has no 
foundation, and that no indemnity is due by Portugal in consequence of the 
loss of the American brig, the " General ArmstroDg,^' armed for privateering 
purposes. 

Done and signed by duplicate, under the seal of State, at the palace of the 
Tuileries, on the thirtieth day of the month of November, in the year of 
grace one thousand eight hundred and fifty-two. 

^^- ^-J L. Napoleox. 

The whole corrcspoudencc between the Amcricau and Portugaese 
governments respecting this claim, together with other papers in 
the case, are printed, and will accompany this opinion. 

The question to be decided is, whether, under the circumstances 

15 



210 BRIG GENERAL ARMSTRONG. 

of the case, the United States are liable to the claimauts for the 
loss occasioned by the destruction of the privateer ? 

The claimants contend that they once had a valid claim against 
Portugal for one hundred and thirty-one thousand six hundred dol- 
lar ; that they have lost that claim by the mismanagement of the 
same by the United States ; and that the United States are there- 
fore bound, by law, to pay them the amount so lost. 

The first inquiry to be made is relative to the nature of the de- 
mand of the claimants against Portugal. 

There is no absolute certainty, from the evidence, as to whether 
the privateer or the British were the aggressors. The first gun 
was fired by the privateer, but that firing may have been justifiable 
in self-defence. Whether it was so or not, is a question upon which 
there is contradictory evidence. On the part of Portugal, we have 
the deposition of Lieutenant Fausset, of the British navy, and two 
of his men, dated the 21th of September, 1814, which, according to 
a copy furnished by the Portuguese minister, is as follows : " That 
on Monday, the 26th instant, about eight o'clock in the evening, he 
was ordered to go in the pinnace or guard-boat, unarmed, on board 
her Majesty's brig Carnation, to know what armed vessel was at 
anchor in the bay, when Captain Bentham, of said brig, ordered 
him to inquire of said vessel (which, by information, was said to 
be a privateer). When said boat came near the privateer, they 
hailed to say the Americans, and desired the English boat to keep 
off, or they would fire into her ; upon which Mr. Fausset ordered 
his men to back astern, and with a boat-hook was in the act of so 
doing, when the Americans, in the most wanton manner, fired into 
said English boat, killed two and wounded seven, some of them 
mortally, and this, notwithstanding said Fausset frequently called 
out not to murder them ; lliat they struck and called for quarters ; 
said Fausset solemnly declared that no resistance of any kind 
was made, nor could they do it, not having any arms, nor, of course, 
sent to attack said vessel. Also, several Portuguese boats, at the 
time of said unprecedented attack, were going ashore, which, it 
seems, were said to be armed." 



MSSEifrmO OPINION OF JUDGE BLACKFORD. 211 

On the part of the privateer, wc have the protest of Captain Reid 
and his officers before stated, made and sworn to on said 27th of 
September, 18U.' That protest, after mentioning the privateer's 
arrival at Fayal soon after noon of the previous day, says : " That 
during the said afternoon his crew vi^ere employed in taking on 
board water, when about sunset of the same day, the British brig 
of war Carnation, Captain Bentham, appeared suddenly doubling 
round the northeast point of this port. She was immediately fol- 
lowed by the British ship Rota, of thirty-eight guns. Captain P. 
Somerville, and the seventy-four gun ship Plantagenct, Captain 
Robert Lloyd, which latter, it is understood, commanded the 
cquadron. They all anchored about seven o'clock, P. M. and 
soon after some some suspicious movements on their part, indi- 
cating an intention to violate the neutrality of the port, induced 
Captain Reid to order his brig to be warped in shore, close under 
the guns of the castle ; that in the act of doing so, four boats ap- 
proached his vessel filled with armed men. Captain Reid repeat- 
edly hailed them, and warned them to keep off ; which they disre- 
garding, he ordered his men to fire on them, which was done, and 
killed and wounded several men. The boats returned the fire, and 
killed one man and wounded the first lieutenant ; they then fled to 
their ships and prepared for a second and more formidable attack. 
The American brig, in the mean time, was placed within half a 
cablejs length of the shore, and within half a pistol shot of the 
castle. Soon after midnight, twelve, or, as some state, fourteen 
boats, supposed to contain nearly four hundred men, with small 
cannon, swivels, blunderbusses, and other arms, made a violent 
attack on said brig, when a severe conflict ensued, which lasted 
near forty minutes, and terminated in the total defeat and partial 
destruction of the boats, with an immense slaughter on the part of 
the British. The loss of the Americans in the actions was, one lieu- 
tenant and one seaman killed, and two lieutenants and five seamen 
wounded. At daybreak the brig Carnation was brought close in, 
and began a heavy cannonade on the American brig, when Captain 
Reid, finding further resistance unavailing, abandoned the vessel, 



212 BKIG GENERAL AEMSTEONG. 

after partially destroying her, and soon after the British set her <m 
fire." 

The American consul at Fayal, in his note of September 26, 1814, 
to the governor of the Azores, says : "In violation of the ijeatra- 
lity which his royal highness, the Prince Regent, has promised to 
observe towards the United States of America and England in the 
present war, the ships of war of his Britannic Majesty, now lying in 
this port, lately ordered four or five armed boats to surprise and 
carry off the American armed schooner General Armstrong, which 
is lying here under the guns of the castle, on the protection of which 
fihe regarded herself absolutely in security. The boats were 
repulsed, but a new and more formidable attack is now feared." A 
relation of the conflict, similar to that given in Captain Reid's pro- 
test, is given by the governor of the Azores, but as he was not pre- 
sent at the commencement, he could only speak from information as 
to that part of it. The Portuguese minister then at Rio Janeiro, 
considered, from information received from the said governor, that 
the British were the aggressors, and in his letter on the subject to 
the British minister, in December, 1814, he denounced the conduct 
of the British commander in very strong terms. 

It appears to me, from an examination of the evidence of those 
persons having any personal knowledge of the affair, which evidence 
is contradictory, and none of which is impeached, that the question 
of fact in controversy as to whether the privateer or the British 
ships were the aggressors, was a fair one for negotiation between 
the United States and Portugal, and to be referred, if they could 
not agree, to some proper tribunal for adjudication. 

There is another inquiry relative to the demand of the claimants 
against Portugal, and that is, whether, supposing the British ves- 
sels to have been the aggressors, the laws of nations rendered Por- 
tugal liable for the' loss of the privateer ? 

Had the privateer, instead of being destroyed, been captured 
only by the British, and had afterwards come into the possession of 
Portugal, there is no doubt but that Portugal would have been 



DISSENTING OPINION OF JUDGE BLACKFORD. 213 

bound to restore the vessel to the original owners ; nor is there any 
doubt but that the governor of Fayal, if he had had the power, 
would have been bound to endeavor, by force, to prevent the dis- 
aster. But the difficulty as to these matters is, that the privateer 
having been destroyed could not be restored, and that the gover- 
nor had no means by which he could have prevented, by force, the 
destruction of the privateer. The above stated question therefore, 
-whether, supposing the British to have been the aggressors, Por- 
tugal was liable, by the laws of nations, to pay for the privateer, is 
not entirely free from doubt. And the cause of the doubt is, that 
the privateer was never in the possession of Portugal, and there was 
no neglect of duty by the governor of Fayal. Chancellor Kent, in 
one part of his Commentaries, says : " It is not lawful to make 
neutral territory the scene of hostility, or to attack an enemy while 
within it, and if the enemy be attacked, or any capture made under 
neutral protection, the neutral is bound to redress the injury and 
effect restitution." — 1 Kent's Com., IIT. But on a subsequent 
page his language is as follows : " A neutral has no right to 
inquire into the validity of a capture, except in cases in which the 
rights of neutral jurisdiction were violated ; and in such cases, the 
neutral power will restore the property, if found in the hand of the 
offender, and within its jurisdiction, regardless of any sentence of 
condemnation by a court of a belligerent captor. It belongs 
solely to the neutral government to raise the objection to a capture 
and title, founded on the violation of neutral rights. The adverse 
belligerent has no right to complain when the prize is duly libelled 
before a competent court. If any complaint is to be made on the 
part of the captured, it must be by his government to the neutral 
government, for a fraudulent, or unworthy, or unnecessary submis- 
sion to a violation of its territory ; and such submission will natu- 
rally provoke retaliation." (1 Kent's Com., 12l.) If this last-cited 
passage from Kent be the law, Portugal was not liable, because 
it is certain that the governor of Fayal did not submit to the 
outrage fraudulently, or unworthily, or unnecessarily. But, on the 



214 BEIG GENEKAX ARMSTRONG. 

contrary, he endeavored, as soon as he had notice of the hostile 
acts, to prevent, by peaceable means, the further violation of the 
iJeutrality of the port ; and he had no other means by which it 
could be prevented. Wheaton's language is as follows : " Where 
a capture of enemy's property is made within neutral territory, or 
by armaments unlawfully fitted out within the same, it is the 
right as well as the duty of the neutral State, where the property 
thus taken comes into its possession, to restore it to the original 
owners. (Wheaton's International Law, 494 ) This doctrine of 
Wheaton agrees with that laid down by Kent in the passage last 
above cited from his Commentaries. Kent there says, that in 
cases in which the rights of neutral jurisdiction are violated, " the 
neutral power will restore the property, if found in the hands of the 
offender and within its jurisdiction." This doctrine of these 
eminent American authors is decidedly in favor of Portugal ; for 
if her liability depended on her having possession of the privateer, 
she certainly was not liable, the vessel having been destroyed by 
the British ships. 

The question respecting the liability of Portugal under the 
circumstances of the case, does not appear to be settled by foreign 
writers on the laws of nations. Bynkershoek may be considered to 
be against the Portuguese side of the question. (Bynkershoek on 
the Law of War, 59, 60.) But Kluber, who is a much later 
writer, is in favor of Portugal. This last named author says : 
" That the neutral is not to allow, voluntarily, that either of the 
belligerent parties shall commit, upon its neutral territory, either 
continental or maritime, any hostile acts." (Kluber's Law of 
Nations, page 86, section 284.) Portugal was not accountable for 
the outrage, according to the authority of Kluber, because it is 
clear that the governor of Fayal did not allow, voluntarily, the 
breach of the neut»ality of the port. This doctrine of Kluber is 
substantially the same with that of Kent last referred to ; the 
latter author saying, that the complaint against the neutral gov- 
ernment must be for " a fraudulent, or unworthy, or unnecessary 



DISSENTING OPINION OF JUDGE BLACKFORD. 215 

snbmission to a violation of territory." That there was no such 
submission in this case, is shown by the correspondence between 
the governor and the British commander durin<^ the night of the 
26th of September aforesaid. Indeed, Captain Reid's protest con- 
fines his complaint to the inability of Portugal. That protest 
says : " And the said Captain Reid also protests against the gov- 
ernment of Portugal, for their inability to protect and defend the 
neutrality of this their port and harbor." 

It appears to me, therefore, that the question of public law 
involved in the present case, as well as the question of fact before 
referred to, was a very proper subject to be submitted by the 
governments of the United States and Portugal to arbitration. 

The questions mentioned above were exceedingly important. 
Not only a large amount of money depended upon the result, but, 
what is of infinitely higher concern, the honor of two independent 
nations was involved in the controversy. Those questions, both of 
fact and of law, had been the subjects of negotiation for more than 
thirty years previously to 1851, when the treaty between the two 
governments was entered into submitting the controversy to arbi- 
tration, which resulted in an award, by the President of the French 
republic, against the validity of the claim. 

In consequence of that award, the claimants have abandoned their 
claim against Portugal ; but they now turn round and demand the 
amount, namely, one hundred and thirty-one thousand six hundred 
dollars against the United States. The ground of this demand is, 
that the Secretaries of State, and the President and Senate of the 
United States, have lost, by mismanagement, the claim against Por- 
tu'^al, and have -thus made their own government liable for the 
amount. There are several charges of mismanagement insisted on, 
which will be particularly noticed. 

One of the charges, which is that of ncglQ#t iu the negotiation, 
admits of a short answer. The delay which occnrred, from the time 
the claim was presented soon after it originated, till 1837, is account- 
ed for by the disordered state of the government of Portugal during 



216 BRIG GENERAL ARMSTRONG. 

that period. The Secretary of State, Mr. McLean, ia 1834, gives 
the unsettled political affairs of Portugal as a reason for not then 
insisting on the claim. The claimants, in their argument, made part 
of their memorial to Congress, in 1854, says ; "These delays were 
occasioned, as will appear by the correspondence, by the peculiar 
condition of the government of Portugal, and the indisposition of 
the American government to urge this claim on her, until that gov- 
ernment should be placed in a better situation, and under better 
auspices; but the owners have never failed to make continual claim," 
etc. The American charge d'affaires at Lisbon, gives to the Portu- 
guese minister, in 1850, the following reason for the non-presenta- 
tion of the claim between 1815 and 1837, namely: " The disincli- 
nation of the government of the United States to urge the claim 
upon Portugal, convulsed, as she almost continually was, by intestine 
difficulties." 

Another charge of mismanagement of the claim, relates to the sub- 
mission to arbitration. 

The claimants say that our government received a honws from Por- 
tugal as a consideration for referring the case. This objection must 
depend upon the face of the treaty. That was made, on the part 
of our government, by the President and Senate. It was by the 
treaty alone that the case was referred. The treaty commences as 
follows: " The United States of America and Her Most Faithful Ma- 
jesty, the Queen of Portugal and of the Algarves, equally animated 
with the desire to maintain the relations of harmony and amity which 
have always existed, and which it is desirable to preserve between the 
two Powers, having agreed to terminate, by a convention, the pending ■" 
questions between their respective governments, in relation to certain 
pecuniary claims of American citizens, presented by the government 
of the United States against the government of Portugal, have ap- 
pointed as their plei^potentiaries for that purpose," etc. The first 
article is as follows : " Her Most Faithful Majesty, the Queen of 
Portugal and of the Algarves, appreciating the difficulty of the 
two governments agreeing upon the subject of said claims, from the 



DISSENTING OPINION OF JUDGE BLACKFOED. 217 

difference of opinion entertained by them respectively, which difiB- 
culty might hazard the continuance of the good understanding now 
prevailing between them, and resolved to maintain the same unim- 
paired, has assented to pay to the government of the United States a 
sum equivalent to the indemnities claimed for several American citi- 
zens (with the exception of that mentioned in the fourth article,) 
and which sum the government of the United States undertakes to 
receive in full satisfaction of said claims, except as aforesaid, and to 
distribute the same among the claimants." The second and third 
articles merely provide for the submission to arbitration of the case 
of the brig General Armstrong. The fourth article is as follows ; 
" The pecuniary indemnities which Her Most Faithful Majesty pro- 
mises to pay, or cause to be paid, for all the claims presented pre- 
vious to the 6th day of July, 1850, in behalf of the American citizens, 
by the government of the United States (with the exception of 
that of the General Armstrong, ) are fixed at ninety-one thousand 
seven hundred and twenty-seven dollars, in accordance with the cor- 
respondence between the two governments." The other articles 
have no bearing on the question. There is surely nothing in this 
treaty to support, in the slightest degree, the idea that the submis- 
sion of the case, by the President and Senate, was in consideration 
of a bonus, or for any other purpose than that of having the claim 
properly and legally investigated and determined. The treaty pro- 
vides for the payment of all the other claims except that of the Gen- 
eral Armstrong, and refers that claim to arbitration ; and that is 
the whole of the treaty a.s regards the submission. It is unneces- 
sary, surely, to notice any further this extraordinary charge against 
the treaty-making power of the United States. 

Another charge is, that our government had no authority to sub- 
mit the case to arbitration, without consulting the claimants. This 
position is untenable. When the government, at the request of the 
claimants, consented to make a demand on Portugal for the alleged 
claim, the controversy became one between government and govern- 
ment, which might, if the goyernments chose, be referred to arbitra- 



218 BRIG GENERAL ARMSTRONG. 

tion. The law of nations on this subject is stated by Mr. Wildman 
to be as follows : 

" The only pacific modes of settling differences, which cannot be 
adjusted by negotiation, are arbitration and reprisal. First, with 
respect to arbitration : An arbitrator is a person authorized by the 
parties in difference, to decide what shall be done with regard to the 
matters submitted to his judgment. Where the award of an arbi- 
trator is final, and confined to the terms of the submission, it is con- 
clusive, unless it has been made in collusion with one of the parties. 
^Puffendorf, book 5, chap. 13 ; Yattel, book 2, sec. 329. For 
there is no superior authority by which the validity of such an award 
can be examined, and consequently it is binding, although it be 
unjust.— Grotius, book 3, chap. 20, sec. 46 ; Puffendorf, ibid."— 
1 Wildman's International Law, p. 186, chap. 5. 

It is certain, therefore, that the submission to arbitration of the 
controversy, relative to the claim against Portugal, was in strict 
accordance with the laws of nations. The idea that the government 
was not authorized to refer the case to a third power, without con- 
sulting the claimants, is not well-founded. The correct view of this 
matter, is that as soon as our government was induced by the claim- 
ants to interfere, the controversy became an affair of state, to be 
treated of between the two governments as other differences be- 
tween nations are treated — that is to say, by negotiation, and such 
other modes as are recognized by the laws of nations. But, further 
it appears that the claimants acquiesced in the reference. The pre- 
sent Secretary of State, Mr Marcy, iu his letter of 1854, to the 
chairman of Foreign Relation, says: "From an examination of the 
files of the department, it appears that, pending the negotiations 
which terminated in the convention with Portugal of 1851, two let- 
ters were addressed to the Secretary of State, on the subject of the 
reference of the Armstrong claim to the arbitration of a third 
Power : one dated August 26, 1850, by S. C. Reid, 'late comman- 
der of the privateer General Armstrong,' and the other dated Sep- 
tember 5, 1850, by S. C. Reid, jr., ' sole and only authorized agent 



DISSENTING OPINION OF JUDGE BLACKFORD. 219 

of the claimants ' to the case. Copies of these letters, and of the 
replies thereto, are herewith enclosed. There are several other let- 
ters from the last-named gentleman on the same subject, and of sub- 
sequent dates, among the files of the department, from which it 
would appear that the claimants in the case had acquiesced in the 
decision of their government to agree to refer their claim to arbi- 
trament. If a different opinion was entertained by them, it is at 
least certain that their authorized agent did not, in any letters to 
this department, protest against that decision, or intimate doubts 
as to its propriety or expediency." Those statements of the Secre- 
tary seem to be, at all events, a full answer to this charge. 

Another charge of mismanagement is the refusal of the Secretary 
of State, Mr. Webster, to forward to the arbiter a written argument 
of the claimants. 

The treaty between the two governments, by which the case waa 
referred, contains the following article : 

" Art. 3. — So soon as the consent of the sovereign, potentate, or 
chief of some friendly nation, who shall be chosen by the two high 
contracting parties, shall have been obtained to act as arbiter in the 
aforesaid case of the privateer brig General Armstrong, copies of all 
correspondence, which has passed in reference to said claim between 
the two governments and their respective representatives, shall be 
laid before the arbiter, to whose decision the two high contracting 
parties hereby bind themselves to submit." 

It appears to me that this language of the treaty shows that the 
arbiter was to determine the case upon the correspondence which had 
taken place on the subject between the two governments. That cor- 
respondence had been very extensive, and had been conducted with 
great ability on both sides. The questions of fact and of law belong- 
ing to the case had been fully investigated by the gentlemen to whom 
the business was confided. It would seem to have been proper, under 
those circumstances, for the parties to submit the cause to the arbiter 
upon the correspondence, without further argument by cither of them. 
The claimants had no additional evidence to furnish. It is proper, 



220 BKia GENERAL ARMSTRONG. 

also, to add, that if, as the claimants contend, Mr. Webster's refusal 
to forward the argument was improper, he was guilty of a wrong to 
the claimants. Now the law is settled, that for any such wrong by 
a public officer, the government is not liable to the individual injured. 
The language of Judge Story on this subject is as follows : " In the 
next place, as to the liability of public agents for torts or wrongs 
done in the course of their agency, it is plain that the government 
itself is not responsible for the misfeasances, or wrongs, or negli- 
gences, or omissions of duty of the subordinate officers or agents 
employed in the public service ; for it does not undertake to guaranty 
to any persons the fidelity of any of the officers or agents whom it 
employs, since that would involve it, in all its operations, in endless 
embarrassments, and difficulties, and losses, which would be sub- 
versive of the public interests ; and, indeed, laches are never im- 
putable to the government." — Story on Agency, section 319. 

To place this charge in its true light, I must borrow the argument 
of an eminent statesman. Mr. Webster, in his refusal to forward 
the argument, was either right or wrong. If Mr. Webster was 
right, then there is an end of the charge. If Mr. Webster was 
wrong, then there is an end of the charge also ; because the govern- 
ment is not liable for the wrong of a public officer in bis action 
respecting a private claim. So that whether Mr. Webster was right 
or wrong, there is no ground for the charge. 

The claimants make one more charge of mismanagement of their 
claim, namely, that the award should have been rejected as not 
being within the terms of the submission. 

The claimants say that the arbiter has decided on the facts of the 
case, when he was only authorized to decide a question of law. The 
second article of the treaty referring the case is as follows : 

"The high contracting parties not being able to come to an 
agreement upon the question of public law involved in the case of 
the American privateer brig General Armstrong, destroyed by 
British vessels in the waters of the island of Fayal, in September, 
1814, Her Most Faithful Majesty has proposed, and the United 



DISSENTING OPINION OF JUDGE BLACKFORD. 221 

States of America have consented, that the claim presented by the 
American government in behalf of the captain, officers, and crew, of 
the said privateer, should be submitted to the arbitrament of a sove- 
reign, potentate, or chief of some nation in amity with both the 
high contracting parties." The third article (hereinbefore copied) 
contains the following provision : "Copies of all correspondence 
which has passed, in reference to said claim, between the two gov- 
ernments and their respective representatives, shall be laid before 
the arbiter, to whose decision the two high contracting parties hereby 
bind themselves to submit." The second article commences by 
saying, that the parties disagreed respecting the question of public 
law ; but when the article comes to state the agreement to submit, ■ 
it says, that Her Most Faithful Majesty has proposed, and the 
United States of America have consented, that the claim presented 
by the American government in behalf, etc., should be submitted to 
the arbitrament, etc.; and the third article, in order to enable the 
arbiter to determine the merits of the claim, directs that copies of all 
the correspondence, in reference to the claim, should be laid before 
him. It seems, therefore, to be very clear that the merits of the 
claim, that i?, both the facts and law, were submitted to the arbiter, 
and were to be decided by him. 

The consequence is, that the award, which is in favor of Portugal 
upon the facts that the case and the law applicable to them as they 
vFcre understood by the arbiter, must be considered to be within the 
submission, and to have been rightly accepted by the government. 

I have now examined all the charges made by the claimants against 
the United States as to the management of the claim, and have come 
to the conclusion that none of them are sustainable. 

But there is another and more enlarged view of this case, which it 
is proper to notice. This view is presented by the following letters 
of instruction from Mr. Forsyth, as Secretary of State, to Mr. Kav- 
anagh, our charg^ d'affaires at Lisbon, in regard to the present 
claim : 



2Sd BEIG GENERAL ARMSTEONG. 

DSPARTHEHT OF STATB, 

Washington, October 22, 183d. 
Sir: In a dispatch addressed to you on the 20th of May last (No. 4), yonr 
attention was called to a claim of the owners, ofiScers, and crew of the Anaer- 
ican privateer General Armstrong, which was captured and destroyed by a 
British fleet in the port of Fayal, during the last war between the United States 
and Great Britain ; and you were informed that Captain Reid, who represented 
himself to be the agent of the parties concerned, would be requested to transmit 
to you the necessary documents to establish the claim, and to show the amount 
of damages to which the persons interested were entitled. Permission having 
been granted to Captain Reid to forward those documents through the depart- 
ment, the enclosed papers have just been received from him, and are transmit- 
ted to you without examination. The department is not to be understood; 
therefore, as expressing any opinion in respect to their sufficiency for the 
purpose for which they are designed, or as to the amount of the claim which 
you are to make upon the Portuguese government. It is not thought necessary 
to add anything to the instructions which have heretofore been given to you 
upon the subject. 

I am, sir, your obedient servant, 

John Forsyth. 

{Extract.^ 

DaPARTMEHT OP STATU, 

Washington, September 21, 1886k 
Sir: ♦ •' • • * * • 

It is not necessary that you should wait for any further opinion of the 
department upon the claim of the owners, officers, and crew of the privateer 
General Armstrong. You have already been instructed as to the general 
character of this claim, and the principle upon which it is founded. You will 
make the best use of such testimony as has been furnished you by the claim* 
ants in its support ; and as it is well understood that, after asking the inter- 
ference of their government to procure redress for the injuries they supposed 
themselves to have sustained, the parties must abide by such settlements aa 
that government may make, you will, after a careful examination of the evi- 
dence, demand from the Portuguese authorities the highest amount of damages 
which, in your judgment, a prudent and conscientious man would feel himself 
justified in asking, were he prosecuting his own claim. * • « * 

I am, sir, your obedient servant, 

John Forstth. 



DISSENTINQ OPINION OF JUDGE BLACKFORD. 223 

The doctrine of this last letter of Mr. Forsyth's is similar to that 
stated by Mr. Adams, as Secretary of State, in 1823. The follow* 
ing is Mr. Adams's language : " But unacknowledged, unsettled, 
unliquidated claims form the natural subject of negotiation, and of 
all negotiation the necessary and essential character is compromise. 
Of such claims, whether originating in contract or in wron^r the 
very application of an individual to one government to assist him in 
the enforcement of his claims upon another, imports, of itself, the 
consciousness that he cannot obtain his claims without that assistance, 
and makes them at once a subject of negotiation and compromise." 
House Rep. 1 vol., 1 sess. 33d Congress. 

I consider when, at the request of a claimant on a foreign nation, 
our government, without consideration, assents to interfere in his 
behalf, its action may be by negotiation, compromise, arbitration, or 
even by reprisals or war. But in the adoption of any such measure, 
the government, by the understanding of the parties, and by the 
laws of nations, exercises its own judgment and discretion. The 
claim thus in the possession of the government, becomes a national 
one, to be attended to as other claims of the nation are attended to. 
The government on such occasions acts, not as an agent of the 
claimants, but in its sovereign capacity, and with a view not merely 
to the individual interest of the claimant, but to the general welfare 
of the nation. It frequently happens where a number of citizens of 
one nation have claims on another nation, and solicit the interfer- 
ence of their own government, that a treaty is entered into between 
the two nations, by which the claims are discharged on the payment 
of a certain sum to be distributed among the claimants. If that sum 
prove insufficient, the claimants must bear the loss. The case is one 
of compromise, and the claimants must abide by it. See the commn- 
nication of Mr. Adams above referred to. The judgment and discre- 
tion of our government in the present case, were exercised by the 
President and Senate in referring, by a treaty with Portugal, the 
claim in question to the arbitrament of the President of the French 
republic, and by the executive department in its negotiations with 



224 BRIG GENERAL ARMSTRONG. 

the Portuguese authorities before and after the submission. This 
exercise of judgment and discretion by the treaty-making power, 
and by the executive department, was political in its nature, and is 
entirely independent of the judiciary. The result was an award of 
the arbiter, upon the merits, iu favor of Portugal. That award 
must be considered final and conclusive. Grotius, as to the effect 
of such an award, says : " Although the civil law may decide upon 
the conduct of such arbitrators, to whom a compromise is referred, 
so as to allow an appeal from their decision, or complaints against 
their injustice ; this can never take place between kings and nations. 
For here there is no superior power that can either rivet or relax 
the bonds of an engagement. The decree, therefore, of such arbiter 
must be final and without appeal." — Grotius, book 3, ch. 20. The 
claimants admit that the award is conclusive as regards Portugal. 
That admission is intended as a justification for their now charging 
the United States instead of Portugal ; but there is no reason for 
the charge. Our government never had any concern in the claim, 
except that, to oblige the claimants, and on their repeated and 
urgent solicitations, it made great efforts for many years to obtain 
for them from Portugal the amount they claimed. These efforts 
failed of success only because the claimants did not furnish sufficient 
evidence to satisfy the arbitrator that their claims were valid. That 
being the case, I know of no ground upon which the United States 
can be considered liable for the claim in a court of justice, governed, 
as this court is, by legal principles. The bravery of the officers and 
crew of the privateer in the conflict at Fayal cannot be too highly 
admired. For their valor on that occasion, they received from 
Congress, in 1834, an appropriation, as prize money, of ten thou- 
sand dollars. For any other compensation, to which the present 
claimants may believe themselves entitled, they must rely, in my 
opinion, not upon any legal right, but upon the liberality of Con- 
gress. 

For the above reasons, I dissent from the judgment of the major- 
ity of the court in this case. 



APPENDIX. 



To Captain S. C. Heid, commander of the private armed brig of war 
called the General Armstrong. 

INSTRUCTIONS FOR THE PRIVATE ARMED VESSELS OF THE 

UNITED STATES. 

1. The tenor of your commission under the act of Congress, entitled 
" An act concerning letters of marque, prizes, and prize goods," a copy 
of which is hereto annexed, will be kept constantly in your view. The 
high seas, referred to in your commission, you will understand, generally, 
to extend to low water mark ; but with the exception of the space 
within one league, or three miles, from the shore of countries at peace 
both with Great Britain and with the United States. You may, never- 
theless, execute your commission within that distance of the shore of a 
nation at war with Great Britain, and even on the waters within the 
jurisdiction of such nation, if permitted so to do. 

2. You are to pay the strictest regard to the rights of neutral powers, 
,and the usages of civilized nations ; and in all your proceedings towards 
neutral vessels, you are to give them as little molestation or interruption 
as will consist with the right of ascertaining their neutral character, and 
of detaining and bringing them in for regular adjudication, in the proper 
cases. You are particularly to avoid even the appearance of using force 
or seduction, with a view to deprive such vessels of their crews, or of 
their passengers, other than persons in the military service of the 
'enemy. 

3. Towards enemy vessels and their crews, you are to proceed, in 
exercising the rights of war, with all the justice and humanity which 
characterize the nation of which you are members. 

16 «« 



226 APPENDIX. 

4. The master and one or more of the principal persons belonging to 
captured vessels, are to be sent, as soon after the capture as maybe, to 
the judge or judges of the proper court in the United States, to be 
examined upon oath, touching the interest or property of the captured 
vessel and her lading : and at the same time are to be delivered to the 
judge or judges, all passes, charter parties, bills of lading, invoices, let- 
ters and other documents and writings found on board ; the said papers 
to be proved by the affidavit of the commander of the capturing vessel, 
or some other person present at the capture, to be produced as they 
■were received, without fraud, addition, subduction or embezzlement. 
By command of the President of the U. 8. of America, 

James Monroe, Secretary of State. 



LETTER OF INSTRUCTIONS FROM MESSRS. JENKINS & 
HAVENS, AGENTS, TO OAPT. SAMUEL 0. REID. 

(Copy) New York, Zd Sept., 1814. 

Capt. Samuel 0. Reid : 

The private armed brig of war General Armstrong under your 
command, being now ready for a cruise, it becomes necessary for us to 
furnish instructions thereto— in doing this, we do not mean to debar you 
the privilege of exercising your discretion in the choice of a station, but 
we recommend, as in our opinion being the most likely of affording 
objects for enterprise and profit, that you stretch off to Madeira, where 
you will be most likely to intercept the Brazil convoys, and should you 
be successful in falling in with vessels, finish your cruise there. If, on 
the contrary, you cannot succeed in capturing vessels enough, and of 
sufficient value to man, we would recommend you to go through the 
Cape de Verde Islands and fill up your water, and from thence on the 
coast of Brazil. The prizes you may order for the United States, we 
think will be best to be ordered direct for New York or "Wilmington, and 
in the event of their safe arrival at any port in the United States, you will 
direct them to write to us immediately on arrival, that we may send on 
a confidential person to take charge of the property, in preference to 
appointing agents at different places. 

On your return to the United States, should you have any prisoners 
on board, take care to secure them until they are delivered to the proper 



APPENDIX. 227 

officer in order to obtain the bounty. Hoping that yonr cruise may ter- 
minate successfully and honorably to yourself, officers, and crew, and 
your country, we are 

Your assured friends, 

(Signed) Jenkins & Havens, Agents. 

P. S.— Be very particular in strictly prohibiting any plunder or depre- 
dations on neutrals or other vessels. 



CONVENTION FOR THE PAYMENT AND SETTLEMENT OF CER. 
TAIN CLAIMS OF AMERICAN CITIZENS AGAINST PORTUGAL, 

BETWEEN 

THE UNITED STATES OF AMERICA AND THE QUEEN OF 

PORTUGAL. 

A PROCLAMATION, 

Whereas a Convention between the United States of America and 
Her Most Faithful Majesty the Queen of Portugal and of the Algarves, 
•was concluded and signed by their Plenipotentiaries, on the twenty-sixth 
day of February, in the year of our Lord one thousand eight hundred and 
fifty-one, which Convention, being in the Enghsh and Portuguese lan- 
guages, is word for word as follows : 

The United States of America and Her Most Faithful Majesty, the Queen 
of Portugal and of the Algarves, equally animated with the desire to 
maintain the relations of harmony and amity which have always existed, 
and which it is desirable to preserve between the two Powers, having 
agreed to terminate, by a Convention, the pending questions between 
their respective Governments, in relation to certain pecuniary claims of 
American citizens, presented by the Governm^t of the United State* 
against the Government of Portugal, have appointed as their Plenipoten- 
tiaries for that pui-pose, to wit : 

The President of the United States of America, Daniel Webster, Secre- 
tary of State of said United States, and 

Her Most Faithful Majesty, J. C. de Figauidre 6 Morao, of Her Council, 
Knight Commander of the Orders of Christ, and of O. L. of Conception 
of "Villa Vifoza and Minister Resident of Portugal near the Government 
of the United States — 



228 APPENDIX. 

Who, after having exchanged their respective full powers, fotind to ho 
in doe and proper form, have agreed upon and concluded the following 
articles : 

ABTIOLB I, 

Her Most Faithful Majesty, the Qaeen of Portugal and of the Algarves, 
appreciating the difficulty of the two Governments agreeing upon the 
suhject of said claims, from the difference of opinion entertained by them 
respectively, which difficulty might hazard the continuance of the good 
understanding now prevailing between them, and resolved to maintain 
the same unimpared, has assented to pay to the Government of the United 
States a sum equivalent to the indemnities claimed for several American 
citizens (with the exception of that mentioned in the fourth article) and 
which sum the Government of the United States undertakes to receive 
in full satisfaction of said claims, except as aforesaid, and to distribute 
the same among the claimants. 

AETIOLE n. 

The high contracting parties, not being able to come to an agreement 
upon the question of public law involving in the case of the Americau 
privateer brig " General Armstrong," destroyed by British vessels in the 
waters of the Island of Fayal in September, 1814, Her Most Faithful 
Majesty has proposed, and the United States of America have consented, 
that the claim presented by the American Government in behalf of the 
captain, officers, and crew of the said privateer, should be submitted to 
the arbitrament of a sovereign, potentate, or chief of some nation in 
amity with both the high contracting parties. 

ARTICLE in. 

So soon as the consent of the sovereign, potentate, or chief of some 
friendly nation, who shall be chosen by the two high contracting par- 
ties, shall have been obtained to act as arbiter in the aforesaid case of 
the privateer brig " General Armstrong," copies cf aU correspondence 
which has passed in reference to said claim between the two Govern- 
ments and their respective representatives, shall be laid before the arbiter^ 
to whose decision the two high contracting parties hereby bind them- 
selves to submit. 



APPENDIX. 239 

ABTIOLE IV. 

The pecuniary indemnities which Her Most Faithful Majesty promisee 
to pay, or cause to be paid, for all the claims presented previous to the 6th 
day of July, 1850, in behalf of American citizens, by the Gk)vernment of the 
United States (with the exception of that of the " General Armstrong,") 
are fixed at ninety-one thousand seven hundred and twenty-seven dol- 
lars, in accordance with the correspondence between the two Govern- 
ments. 

AETIOLB V. 

The payment of the sum stipulated in the preceding article shall be 
made in Lisbon in ten equal installments, in the course of five years, to 
the properly-authorized agent of the United States. The first installment 
of nine thousand one hundred and seventy-two dollars, seventy cents, 
with interest, as hereinafter provided, (or its equivalent in Portuguese 
current money) shall be paid, as aforesaid, on the 30th day of September 
of the current year of 1851, or earlier, at the option of the Portuguese 
Government ; and at the end of every subsequent six months a like install- 
ment shall be paid ; the integral sum of ninety-one thousand seven hun- 
dred and twenty-seven dollars, or its equivalent, thus to be satisfied on 
or before the thirtieth day of September, 1856. 

ARTICLE VL 

It is hereby agreed that each and all of the said installments are to 
bear, and to be paid with, an interest of six per cent, per annum, from 
the date of the exchange of the ratifications of the present Convention. 

AETICLE vn. 

This Convention shall be approved and ratified, and the ratificationa 
shall be exchanged in the city of Lisbon within four months after tJie 
date thereof, or sooner if possible. 

In testimony whereof^ the respective Plenipotentiaries have signed the 
same, and affixed thereto the seals of their arms. 

Done in the city of Washington, D. C, the twenty-sixth day of Feb- 
ruary, of the year of our Lord one thousand eight hundi-ed and fifty- 
one. 

[l. 8.J Dan'l Webstkb, 

[L. &] J. 0. DK FlQANIJ^ES i MOBAO. 



280 APPENDIX. 

And whereas the said Convention has been duly ratified on both parts, 
and the respective ratifications of the same were exchanged at Lisbon on 
the twenty-third day of June, in the year of our Lord one thousand eight 
hundred and fifty-one, by Charles B, Haddock, Oharg6 d' Affaires of the 
United States near the Government of Her Most Faithful Majesty, and 
Antonio Aluizo Jervis d' Atouguia, Minister of State for Foreign Afiairs 
of her said Majesty, on the part of their respective Governments ; 

Now, therefore, be it known, that I, Millard Fillmore, President of the 
United States of America, have caused the said Convention to be made 
public, to the end that the same, and every clause and article thereof, 
may be observed and fulfilled with good faith by the United States and 
the citizens thereof. In witness whereof, I have hereunto set my hand, 
and caused the seal of the United States to be aflaxed. 

Done at the city of Washington this first day of September, in 

[l. s.] the year of our Lord one thousand eight hundred and fifty- 
one, and in the seventy-sixth year of the Independence of 
the United States. 

MTT.T.ARn FiLLMOBE. 

By the President : 

Wm. S. Derrick, Acting Secretary of State. 
Concluded 2Qth February, 1851. Ratified 10th March, 1851. Eati- 
fication Exchanged 2Zd June, 1851. Proclaimed 1st September, 1851. 



MESSAGE FROM THE PRESIDENT OF THE UNITED STATES, 

OOMMTJNIOATING, 

In compliance with a resolution of the Senate, the Award of the 
Emperor of France in the case of Brig General Armstrong* 

January 24, 1853. — Ordered to lie on the table, and be printed. 
To the Senate of the United States : — 

In answer to the resolution of the Senate of the 14th instant, rela- 
tive to the award of the Emperor Louis Napoleon, of France, in the case 
of the brig General Armstrong, I transmit a report from the Secretary 
of State and the documents by which it was accompanied. 

Millard Fillmore. 

WA8HIHQto», January 24, 1853. 

♦ Ex. Doc. of Sen. No. 24, 2 Seas. 82 Congress. 



APPENDIX. 231 

DEPAETMKjrr 0? Stat*. 1 
Washington, January 21, 1853. ) 

Sir : The Secretary of State, to whom has been referred the resoln- 
tion of the Senate of the 14th instant, requesting the President to 
" communicate to the Senate, if not incompatible with the public inter- 
est, the award of the Emperor Louis Napoleon, of France, upon the 
claim of the owners of the brig General Armstrong against the govern- 
ment of Portugal, together with any correspondence upon that subject 
not heretofore communicated to Congress " has the honor to lay before 
the President a copy of a dispatch of the 13th ultimo, addressed to this 
department by Mr. Rives, the United States Minister at Paris, and also a 
translation of the award of the Emperor of France, to which it refers. 

Respectfully submitted : 

Edwaed Evkbett. 
To the President of the United States. 



Mr. Rives to Mr. Everett. 

Lkqation op ihk Uhitbd Statb. 
Paris, December 18, 1862. 

Sib : I enclose herewith the copy of a letter addi-essed to me by the 
Minister of Foreign Affairs, on the 10th instant, together with a copy 
of my answer. In pursuance of the request of tlie Minister, and the 
terms of my answer, I called at the Department of Foreign Affairs, on 
the 11th instant, at the hour named, and found the Minister of Portugal 
already there. The Minister of Foreign Affairs was absent at the 
moment of our arrival, having been sent for by the Emperor : but return- 
ing soon afterwards, he immediately invited us into his cabinet. 

He commenced the interview by repeating what he had already said 
to me, and which I reported to you in my last dispatch, that the Presi- 
dent of the republic was so incessantly occupied by the many and 
important questions incident to the late change of government here, that 
it was entirely out of his power to invite us to call upon him before 
the consummation of that change, as he intended to do, in order that ho 
might deliver to us personally his award in the case of the "Gcucral 
Armstrong." The Miuister then proceeded to say that, as, in the present 
state of things^ the Emperor could not regularly invite us to an audience, 
as we had not yet received our new letters of credence, he had deemed 



232 APPEDDIX. 

it proper, rather than incur any farther delay, to depute him, the Min- 
ister of Foreign Affairs, to deliver to us, in his name, the award pro- 
nounced by him, as President of the republic, in the case submitted to 
his arbitrament by our respective governments. Having in my answer to 
the note of the Minister of Foreign Affairs, stated that, under existing 
circumstances, I had no power but to transmit the document in question 
to my government, I thought it proper simply to repeat that remark. 

The Minister of Foreign Affairs then handed to me the document 
which I have now the honor to transmit to you, signed by the President 
of the republic on the 30th day of November last, as his award in the 
case of the " General Annstroug," placing a similar one, at the same 
time, in the hands of the Minister of Portugal. 

It may not be improper for me to add that I had never received from 
any quarter any intimation of the nature of the decision rendered ; nor 
did the Minister of Foreign Affairs, in the interview above mentioned, 
make the slightest allusion to its bearing on the one side or the other. 
He only said, in general terms, that the President had examined the 
whole subject with great care and attention, and with an earnest desiro 
to render justice to both parties, according to the facts and principles 
involved in the controversy, 

I have the honor to be, with great respect, your most obedient ser- 
vant, W. C. Rives. 

[Translation.] 

Mr. Drouyn de L'Ruys to Mr, Rivea. 

Department of Foreign Affairs, ) 
Paris, November, 29, 1S&2. J 

Sir : I have the honor to inform you that the arbitral decision asked 
of the Prince President by the government of the United States, and 
that of her most faithful Majesty, upon the claim relative to the Ameri- 
can privateer, the "General Armstrong," has just been rendered, and 
that the Prince President will immediately invite yon to wait on him, 
in order to deliver to you, at the same time with the Minister of Portu- 
gal, the document containing the decision, 

I avail myself of this occasion to renew to you the assurance of the 

high consideration with which I have the honor to remain, sir, your very 

humble and obedient servant, 

DBOtmf DK L'Httts. 



APPENDED 233 

[Translation.] 

Mr. Drouyn de rEuys to Mr. Eives. 

Department of FonEioN ArPAins. ) 
Paria, DeMmber \Oth, 1S62. ) 

Sir: I had the honor of apprising you, under date of the 29th of last 
month, that the arbitral decision relative to the American privateer 
"General Armstrong," had just been rendered. I informed yon, at the 
same time, that you would immediately receive the document containing 
said decision. 

Circumstances not having permitted the Emperor to invite you to wait 
on him as he had intended, he has done me the honor of deputing me 
to deliver, in his name, to the representatives of the two nations inter- 
ested in the matter, the two documents destined for their respective gov- 
"•ninents. 
■ ■'ch is the object which prompts me to request, sir, that you wiU have 
-Kindness to call at the Department of Foreign Affairs'on Saturday 
xiext, at three o'clock, if that day suits your convenience. 

You will find in my cabinet the minister of Portugal, whom I have 
invited to be present at this interview, and I will have the honor of 
delivering into your hands, respectively, the decision rendered on 
the subject of the difierence which has existed between the govern- 
ment of the United States of America and tliat of her most faitliful 
Majesty. 

I avail myself of this occasion to renew to you the assurance of the 

high consideration with which I have the honor to remain, sir, your very 

humble and obedient servant, 

Drouyn dk L'Huts. 



Mr. Bives to Mr. Drouyn de VHuys. 

Ligation op thk tTRrriD Statkb, 1 
ParU, Deo«tnb«r Wth, ISM. ) 

MoNSiBiTR LE MiNiSTRE : I had the honor to receive the note which yonr 
excellency addressed to me, under the date of the 29t]i ultimo, informing 
me that the Prince President of tlie republic would invite me immodiatoly 
to wait on him, that he might deliver to me, at the same time with the 
Minister of Portugal, the decision rendered by him in tlie case of th« 



234: APPENDIX. 

privateer "General Armstrong," submitted to his arbitrament by tbe 
governments of the United States and of Portugal. In consequence of 
your excellency's communication, I held myself constantly ready, as I 
had the honor to inform your excellency, to obey the invitation of v?hich 
you gave me notice the moment it should be received. 

I have now the honor to acknowledge the receipt of your excellency's 
note of yesterday, informing me that circumstances not having permitted 
the invitation to be addressed to me, of which you gave me notice by 
your communication of the 29th ultimo, the Emperor had designated 
you to deliver, in his name, to the representatives of the United Statea 
and Portugal, the two acts destined for their respective governments, 
and requesting me to come to the Department of Foreign Affairs at three 
o'clock to-day, to receive that intended for the government of the United 
States. 

I will do myself the honor, in conformity to your excellency's 
request, to call at the Department of Foreign Affairs to-day, at the hour 
named by you, to receive for transmission to my government, having no 
other authority in the matter under existing circumstances, the important 
document you propose to put into my hands to be communicated to it. 

I have the honor to be, with sentiments of high consideration, your 
excellency's most obedient servant, 

W. 0. RlVB3. 



TRANSLATION OF THE AWAED OF PRESIDENT NAPOLEON IN THE CASE OF 
THE " GENERAL ARMSTRONG." 

"We, Louis Napoleon, President of the Frencli Republic : 
The Government of the United States, and that of her majesty the 
Queen of Portugal and of the Algarves, having, by the terms of a con- 
vention signed at Washington on the 26th of February, 1851, asked ns 
to pronounce as arbiter upon a claim relative to the American privateer 
" General Armstrong," which was destroyed in the port of Fayal on 
the 27th of September, 1814 ; after having caused ourself to be correctly 
and circumstantially informed in regard to the facts which have been the 
cause of the difference, and after having maturely examined the docu- 
ments duly signed in the name of the two parties, which have been sub- 
mitted to our inspection by the representatives of both powers, consider- 
ing that it is clear, in fact, that the United States were at war with her 



APPENDIX. 235 

Britannic majesty, and her most faithful majesty preserving her neu- 
trality, the American brig, the " General Armstrong," commanded by 
Captain Rcid, legally provided with letters of marque, and armed for 
privateering purposes, having sailed from tlio port of New York, did, on 
the 26th of September, 1814, cast anchor in the port of Fayal, one of 
the Azores Islands, constituting part of her most faithful majesty's 
dominions ; 

That it is equally clear that, on the evening of the same day, an 
English squadron, commanded by Commodore Lloyd, entered the samo 
port; 

That it is no less certain that during the following night, regardless of 
the rights of sovereignty and neutrality of her most faithful majesty, a 
bloody encounter took place between the Americans and the English ; 
and that, on the following day, the 27th of September, one of the vessels 
belonging to the English squadron came to range herself near the 
American privateer for the purpose of cannonading her; that this 
demonstration, accompanied by the act, determined Captain Reid, fol- 
lowed by his crew, to abandon his vessel, and to destroy her ; 

Considering that if it be clear that, on the night of the 26th of Sep- 
tember, some English long-boats, commanded by Lieutenant Robert 
Fausset, of the British navy, approached the American brig, the '' Gene- 
ral Armstrong," it is not certain that the men who manned the boats 
aforesaid were provided with arms and annnunition ; 

That it is evident, in fact, from the documents which have been exhi- 
bited, that the aforesaid long-boats, having approached the American 
brig, the crew of the latter, after having hailed them and summoned 
them to be off, immediately fired upon them, and that some men were 
killed on board the English boats, and others wounded — some of whom 
mortally — without any attempt having been made on the part of the 
crew of the boats to repel at once force by force ; 

Considering that the report of the Governor of Fayal proves tliat tlio 
American captain did not apply to the Portuguese government fur pro- 
tection until blood had already been shed, and, when the fire had ceased, 
the brig " General Armstrong " came to anchor under the castle at a 
distance of a stone throw ; tliat said governor states, tliat it wa.^ only 
then, that he was informed of what was passing in the port; that he 
did, on several occasions, interpose with Commodore Lloyd, with a view 



236 APPENDIX. 

of obtaining a cessation of hostilities, and to complain of the violation of 
a neutral territory ; 

That he. effectively prevented some American sailors, who were on 
land, from embarking on board the American brig for the purpose of 
prolonging a conflict which was contrary to the law of nations ; 

That the weakness of the garrison of the island, and the constant dis- 
mantling of the forts, by the removal of the guns which guarded them,, 
rendered all armed intervention on his part impossible ; 

Considering, ia this state of things, that Captain Reid, not having 
applied from the beginning for the intervention of the neutral sovereign,^ 
and having had recourse to ai-ms in order to repel an unjust aggression 
of which he pretended to be the object, has thus failed to respect the 
neutrality of the territory of the foreign sovereign, and released that 
sovereign of the obligation in which he was, to afford him protection bj^ 
any other means than that of a pacific intervention ; 

From which it follows that the government of her most faithful 
majesty cannot be held responsible for the results of the collision which 
took place in contempt of her rights of sovereignty, in violation of the 
neutrality of her territory, and without the local officers or Ueutenants 
having been required in proper time, and enabled to grant aid and pro- 
tection to those having a right to the same ; 

Therefore, we have decided, and we declare, that the clahn presented 
by the government of the United States against her most faithful 
majesty has no foundation, and that no indemnity is due by Portugal in 
consequence of the loss of the American brig, the " General Armstrong," 
armed for privateering purposes. 

Done and signed by duplicate, under the seal of State, at the palace 
of the Tuileries, on the thirtieth day of the month of November, in the 
year of grace one thousand eight hundred and fifty-two. 

[l. 8.] L. Napoleon. 



LIST OF DOCUMENTS READ IN EVIDENCE. 

FIRST SERIES, 1814, 

Capt. Reid's Protest, Sen. Doc. 14, 29th Cong. 1st Sess., p. 4. 
Letter of John B. Dabney, U. S. consul at Fayal, to the Secretary of 
State. In Am. State Papers, volume " Naval Affairs," p. 494. 



APPENDIX. 237 

Capt. Reid's letter, iUd. 495. 

Mr. Dabney to the Governor of the Azores. In Sen. Doc. No. 14, 
29th Cong., 1st Sess., p. 16, marked "No. 1." 

The Governor of the Azores to the commander of the British forces. 
" No. 2," ihid. p. 17. 

The commander of the British squadron to the Governor of the 
Azores. " No. 3," ihid. 

The Governor of the Azores to the commander of the British forces 
♦'No. 4," p. 18,iMd. 

Same to the Same. Ibid., " No. 6." 

The British consul to the Governor of the Azores, " No. 6," -ibid.., 
p. 19. 

The Governor of the Azores to Senor Acevedo, the Minister of State 
of Portugal. Ibid., p. 12. 

Mr. Dabney to the Governor of Fayal. P. 4, Hid. 

The Governor of the Azores to the Minister of State of Portugal . 
Ibid, p. 19. 

Tlie Marqnis de Agniar to Mr. Snmpter. Ibid., p. 22. 

The Same to Lord Strangford. 3id., p. 21. 

Mr. Sumpter's reply to Marquis de Aguiar. Ibid., p. 7. 

SECOND SERIES, 1815 TO 1818. 

Mr. Monroe to Mr. Snmpter. Ibid., p. 20. 1815. 

Mr. Sumpter to Mr. Monroe. Ibid., p. 23. " 

Eeports of the Naval Committee of the Senate of the U. S., January, 
1817. 

Mr. John Quincy Adams to the Chevalier de Serra, 1818. In Ex. 
Doc. 53, H. of Kep., 32d Congress, 1st Sess., p. 13. 

A period of sixteen years here intervenes, and tJie case w prosecuted 
from Mr. Monroe''s administration, without a I'noiolcdge of Portugar$ 
admission, and the proceedings had at Rio Janeiro. 

THIED SERIES, 1834 TO 1854. 

Mr. Louis McLane to Capt. Beid. Sen. Doc. 14, p. 23. 1834. 
Mr. Dickens to Mr. Kavanagli. Ibid., p. 23. 1835. 



238 APPENDIX. 

Mr. Kavanagh to Mr. Forsyth. Sen. Doc, 14, p. 29. 1836. P. 84, 
two letters. 1837. 

Same to the Same. Ihid., p. 36. 1838. 

Same to the Same, grounds of refusal by Portugal. Ibid,, p. 30. 1837. 

Same to the Same, " " " p. 33. " 

Mr. Forsyth to Mr. Reid, continued claim. Ihid., p. 37. 1840. 

Mr. "Webster to Mr. Barrow, in instructions. Ibid., p. 40. 1842. 
" Mr. Reid. Ibid., p. 40. 1842. 

Mr. Barrow to Mr. Webster. " p. 41. " 

" Duke of Terceira. " p. 41. " 

Mr. Webster to Mr. Barrow. " p. 42. " 

Fletcher Webster to Mr. Reid. " p. 43. " 

Mx. Reid to F. Webster, calls attention to proceedings at Rio. iWi., 
p. 43. 1842. 

De Castro to Mr. Barrow. Ibid., p. 46. 

Mr. Barrow to Mr. Webster. Ibid., p. 47. 1843. 

Mr. Barrow to Mr. Upshur. " p. 48. " 

De Castro to Mr. Barrow, final answer and refusal of Portugal. Ibid, 
p. 50. 1848. 

Mr. Reid to Mr. Upshur, urging a reply to De Castro's letter. Rid., 
p. 51. 

Mr. Upshur to Mr. Reid, declining to prosecute the claim further. 
Ibid., p. 54. 1844. 

Mr. Reid to Mr. Upshur, urging the government not to abandon the 
claim. Ibid., p. 54. 

Mr. Reid to Mr. Calhoun. Ibid., p. 58. 

FOTTRTH SERIES, 1846 TO 1850. 

Report of the Committee on Foreign Relations of the U. S. Senate, 
made by Mr. Atherton, 19th May, 1846, 1st Sess. 29th Cong. 

Letter of instructions from Mr. Clayton to Mr. Hopkins. G, p. 16, 
Doc. No. 53, 1st Sess. 82d Cong., April, 1849. 

Mr. Hopkins to Count Tojal. H, p. 33, ibid, (end of the letter), June, 
1849. 

Mr. Clayton to J. B. Clay. U, p. 68, ibid., March, 1850. 

Mr. Clay to Count Tojal, making a peremptory demand. V, p. 69, 
ibid, June, 1850. 



APPENDIX. 239 

Count Tojal to Mr. Clay. Y, p. 73, Ho. Doc, No. 53, proposing to 
pay all tlio other claims, and arbitrate this case. July, 1850. 

Letters showing proqf of lonus in consideration of agreement to 

arbitrate .' 
Mr. Clay to Count Tojal. Z, p. 77, ibid. July, 1850. 
Count Tojal to Mr. Clay. A A, p. 79, ibid. July, 1850. 
Mr. Clay to Count Tojal. B B, p. 80, ibid. July, 1850. 
Mr Webster to De Figaniere, B B B, p. 112, ibid. Sept., 1850. 

Letters admitting England'' s acknowledgments: 

Count Tojal to Mr. Hopkins. I, p. 33. Sept. 1849. 
Count Tojal to Mr. Clay. L, p. 51, ibid. March, 1850. 
Mr. Clay to Count Tojal. M, p. 54, ibid. March, 1850. 
That Portugal never abandoned this claim against England. H, p. 81, 
ibid. June, 1849. 

Demand of correspondence between Portugal and England : 
Mr. Clay to Count Tojal. K, p. 46, ibid, Nov. 1849. 

Interference of England in this negotiation : 
Count Tojal to Mr. Clay. N., p. 57, ibid. April, 1850. • 
Same to the same. P., p. 62, ibid. May, 1850. 

Determination of the President not to arbitrate this claim: 
Mr. Clayton to Mr. Clay. U, p. 68. March, 1850. 
Mr. Clayton to De Figaniere. T T, p. 97. April, 1850. 
Same to Same. V V, p. 99. May, 1850. 
Same to Same. No. 22, p. 180. May, 1850. 
Same to Same, No. 25, p. 186. June, 1850. 
Mr. De Figaniere to Mr. Webster, Z Z, p. 110. Aug., 1850. 
Mr. Clayton to Mr. Reid. [Private F.] June, 1852. 

FIFTH 8KKIE8, 1850 TO 1854. 

The action of Mr. Webster, who agreed to submit the claim to arbitra- 
tion, three days after he became Secretary of State. See Mr, Clayton'» 

Speeches, p. 5, 13, and 17. 
Mr. Webster to Mr. Clay. D D, p. 83. Aug. 1850. 
Mr. Webster to De Figaniere. B B B, p. 112. Sept., 1850. 




240 APPEITDIX. 

Captain Eeid to Mr. "Webster. In Senate Speeclies, p. 9. Aug. 26tli 
1850. 
Mr. Webster to Oapt. Reid. Aug. 29th, 1850. In Sen. Speeches, p. 7 
Mr. Reid to Mr. Webster. Sept. 5, 1850. Ibid. 
Mr. Webster to Mr. Reid. Sept. 18th, 1850. Ibid. 
Mr. Webster to Mr. Hadduck. FT, p, 84. Ho. Doc, No. 53. Feb., 1851. 
Same to Same. G G, ibid. March, 1851. 

Convention between the United States and Portugal. 
Copy of draft of Protocol. June 9, 1851. [No. 1.] 
Letter of Mr. J. A. Thomas to Mr. Phillips. [No. 2.] 

That the proof of claimants' demand was limited to the correspondence, 

subsequent to that of 1814. 

Mr. Webster to Mr. Hadduck. HH, p.85. Ho. Doc. No. 53. March, 1851. 

Same to Same. K K, p. 86. Ibid. July, 1851. 

Mr. Hadduck to Mr. Webster. L L. Ibid. July, 1851. 

Argument of claimants refused to be submitted by the Department of 
State to the arbiter. [See Memorial Sen. Mis. Doc. 14, 1 Sess. 33 Cong.] 

Mr. Eeid to Mr. Webster. July 7th, 1851. [Marked B.] 

Same to Same. Aug 1, 1851. [Marked C] 

Mr. Crittenden to Mr. Reid. Sept. 29th, 1851. [Marked D.j 

Mr. Rives to Mr. Everett, enclosing the award of Louis Napoleon. 
Paris, Dec. 13, 1852. Ex. Doc. of Sen. No. 24, 2 Sess., 32 Cong. 

Mr. Reid to Mr. Everett, Jan. 8th, 1853, protesting against the award 
of Louis Napoleon. [No. 3.] 

Mr. Everett, Secretary of State, to Mr. Reid. [Marked E.j 

Letter of Charles W, Dabney, U. S. consul at Fayal, to Wm. L. 
Marcy, Secretary of State, May 21st, 1853, proving the fact that the 
English were the first aggressors. [No. 4.] 

Letter of Mr. Marcy to the President, December 10th, 1853, declaring 
the award to be final as to the liability of Portugal. See Sen. Ex. Doc. 
No. 7, 1 Sess. 33 Cong. 

The unanimous report of the Committee on Foreign Relations of the 
i^S^ate, by Hon. John.Slidell. March 10th, 1854. No. 157, 1 Sess. of 33 

^.imanimous report on Foreign Affairs of the House, by Hon. John 
PerkmSj^Jfr. May 29th, 1854. No. 139. 1 Sess. of 38 Cong. 




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